However before this question will be approached, is worth stressing that the Criminal Code of 1818 was not the only example of the Polish criminal legislation in the Kingdom of Poland. The important case of other regulation in this field is provided by the military criminal law. The statues which were in force here included the Criminal Code for the Polish Army of the Kingdom191 as well as the official translations of several French military statues, which were continued to be applied, irrespectively of the fall of the Duchy of Warsaw.192

The most characteristic feature of this part of the criminal legislation was the fact that it had been introduced without any formal legislative procedure and gave powers to an army's general in charge to enact further criminal statues for the soldiers under his command.193 Therefore, it constituted a grave violation of the constitutional principles, especially of the principle of the legality. It was also illustrative for both the political and the legal situation of the Kingdom of Poland where the military, under the leadership of the brother of Russian tsar Alexander I, Duke Konstantin Pavlovich had a special status, clearly violating the stipulated and proclaimed constitutional order.

190Equally well a term "legalism" could be applied, but due to the special context of the 1818 parliamentary debate, so much centered about verifying the compatibility of the to-be-enacted Criminal Code with the Polish Constitution 1815, this name appears to be more appropriate.

191Kodex kryminalny dla woyska polskiego or Artykuły do czytania woysku przed wykonaniem przysięgi. Instrukcya dla J.P.P. Oficerów Artylleryi, pełniących obowiązki audytorów, iako też dla officerów wszelkiéy broni, mogących bydź w potrzebie zastąpienia audytorów, Warsaw 1826.

192Prawa Karzące Woyskowe wypisane z Księgi Praw pod tytułem: Le Guide des Juges Militaires przez Xawerego Krysińskiego Audytora Generalnego Woysk Polskich przełożone z dołączeniem wzorów: skarg, inkwizycyi, wotowań i wyroków. w Warszawie w Drukarni Woyskowey 1824. Formally speaking, it was a selection and translation of the French laws prepared by a military official, de facto applied in the polish army of the Kingdom.

193Czyżak (2012, p. 5).

## 6 The Evaluation of the Congruity of the Criminal Code of 1818 with the 1815 Constitution of the Kingdom of Poland

Having made the preceding considerations, it shall be analysed now to which extend the enacted criminal law194 was consistent with the presented regulations of the 1815 Constitution. Such an analysis appears to be particularly interesting bearing in mind the fact that it was almost a unique example of a codification of an entire branch of law in the Kingdom of Poland,195 and so far it has not been analysed more closely in this respect.196

The 1818 Code of Criminal Law generally accepted197 the principle of equality before the law, but it did encounter some minor exceptions. Most notably, according to the Art. 156, 160a-b of the Code, theft, nominally a misdemeanour, shall be considered as felony when it was committed through the servants to the detriment of their masters or by the apprentices to the detriment of their crafts' masters.

This regulation had been criticised both in the legal literature contemporary to the enactment of the 1818 Code198 as well as in the only XX-century monographic study on the Code, being classified as a remnant of feudalism, infringing the formal equality before the law.199 Nevertheless, it has to be noticed that this particular mode of committing a theft stands out for abusing a special relationship of trust that should exist between a master and a servant and is getting close to embezzlement, what enables to understand treating it more severely. Similarly, it would be hard to consider the regulation of Art. 227 of the 1818 Criminal Code, which stated that: "If the fortune of a sentenced person is sufficient, the punishment of an arrest in a public house can be converted to a pecuniary punishment, but only there, where the

194The Criminal Code of 1818 was published i.a. as Kodex karzący dla Królestwa Polskiego: z dodaniem praw kryminalnych późniey uchwalonych, reiestru porządkowego i alfabetycznego, przypisków wskazuiących artykuły związek z sobą maiące, Warszawa 1830.

195It has been praised in the literature as being "besides the introduction of the Napoleon's Code the greatest event of the legal life on the polish soil in the first half of the XIX centaury", cf. Śliwowski (1958, p. 390).

196There can be found some valuable remarks upon the regulations of the 1818 Criminal Code which will be discussed below, such like art. 156 and 160, in Śliwowski (1958)—cf. pp. 281, 286– 288, 366–368, 377 but they were made from an entirely different perspective, i.e. in the light of the marxist perception of legal history as the fight between the estates.

197One of its very clear examples was delivered by art. 44, which stressed that consequences of the punishments in form of civil death or loss of political rights did not reach the "innocent wife or husband".

198Dzierożyński (1830b, pp. 269–391) (partially wrong page numeration in the article), where (cf. pp. 374–378) the author directly refers to collision of the criminal law with general morality for the justification of his stance. This source has been obtained and scanned by the author and made available on the internet platform of the ReConFort project under: http://sources.reconfort.eu/. 199Śliwowski (1958, p. 281).

law explicitly enables for such a change" 200 as such a type of an infringement, since even in the contemporary criminal law the delivered sentence can be commuted on numerous reasons and in very different manners.201

The Code of Criminal Law of 1818 respects the principle of nullum crimen sine lege poenali,202 expressed in its Art. 6: "As a felony, offence or misdemeanour only such a deed can be considered and punished, which according to this law has been found to be a felony, offence or misdemeanour". This rule was further supplemented by Art. 48-49, 60 and 225 which guaranteed that no other punishment can be meted out as that which had been explicitly mentioned in the Criminal Code.203

However there were notable exceptions to this approach: firstly, the rule was not respected in case of the misdemeanours, since art. 588 of the Code stated that "all the police misdemeanours which are not encompassed in this book shall be, according to their nature, considered to be belonging to one of the three chapters of this book und punished according to the punishments specified there."204 In case of the misdemeanours the 1818 Code also did not specify the required mental requirement of the perpetrator, but it hardly can be considered to be a breach of the legality principle.205 Nonetheless, to some degree this principle was infringed by two other statues, Art. 362 and 382 which stated that: "All other acts or omissions in respect to the security of human life, which endanger the natural and common duties of every man or which had been committed contrary to the explicit regulations of the law, which due to the number of their cases cannot be specified (…) shall be punished". 206 Very similar approach can be found in the art. 186, which stated that: "Even though the cases of fraud and falsification due to their great

200Quite interestingly, among the lawyers of that time it was a contentious issue whether the perpetrator himself could choose what kind of penalty (i.e. between a public house and a pecuniary punishment) he will be serving [that was the view advocated by Brzeziński (1830)] while rejected by Hube (1829).

201In the contemporary European continental legal systems for every modification of a legally binding sentence a decision of judge is necessary and it is impossible to avoid serving a prison sentence by paying a given sum of money, cf. e.g. art. 60 or 155 of the contemporary Polish Kodeks karny wykonawczy (Dz. U. z 1997 r. Nr 90, poz. 557 z późn. zm.).

202Declared in the article 23 of the Constitution 1815, cf. above part II of the article.

203A further development of those regulations could be found in the specific provisions concerning the particular additional penalties, where, like in the case of a whipping post, it could be pronounced only when expressly stipulated by the law (cf. art. 36 of the Criminal Code 1818 in fine).

204Already the contemporary lawyers pointed to the fact that this regulation is contradictory to art. 1, 2 and 6 of the Criminal Code 1818, cf. Dzierożyński (1830a, p. 24), who wrote there about: "new doubts that sometimes grant almost unalloyed arbitriness to a judge".

205Jerzy Śliwowski considers that due to this omission it had to be assumed that negligence was sufficient as the minimal threshold of the mental attitude of the perpetrator, cf. Śliwowski (1958, p. 308), what appears to be a correct view.

206The wording of Article 382 was almost identic, yet aimed at offences against human body or health: "All other acts or omissions in respect to the security of human life, which infringe the natural and common duties of every man or which had been committed contrary to the explicit regulations of the law, which due to the number of their cases cannot be specified (…) shall be punished".

number cannot be enumerated, the crime of falsification is committed when: (…)" giving only an exemplary and not complete list of the cases of frauds and falsifications.

Further, the 1818 Code did contain numerous provisions which elaborated the constitutional principle of the protection of the property, as specified in Art. 26 of the 1815 Constitution. This was guaranteed by a hoist of different offences specified in Chapter XI of the II Book of the Criminal Code.207

Interestingly, the Criminal Code of 1818 did contain a very specific provision about the criminal activity against the Constitution itself, namely Art. 247, according to which: "Who maliciously, by the means of scoffing writings or prints gives rise among the inhabitants of the country to disdain of the Constitution or attempts to give rise to such a disdain, shall be punished with arrest in a public house between 3 months and one yearˮ. This regulation clearly testifies how highly valued this legal act was, but also corroborates the persevering existence of an illusion that within the framework of the constitutional order of the Kingdom of Poland certain reasonable modus vivendi with the Russian Empire could be achieved.

Finally, it is worth stressing the fact that the Code already did adhere to several modern principles of the criminal law, such as cognitationis nemo patitur, 208 going even beyond the text of the Constitution itself and possibly paving the way for the development of future Polish Constitutionalism and human rights.209

Briefly summarising the above presented implementation of the principles of the 1815 Constitution of Kingdom of Poland into the Criminal Code of 1818, it has to be stated that they did not amount to seriously contradicting the provisions of the adopted codification und could be easily revoked by a means of a simple subsequent amendment of this codification, being the more probable as the science of the Criminal law in Poland was starting to germinate at this time.210 Yet the changing political circumstances rendered the further development of the legislation in line with the established constitutional principles simply impossible.

207Art. 383-429. They were characterised by a very casuistic regulation, becoming the second longest chapter in the entire Criminal Code.

208Art. 26 stated explicitly that: "For bad thoughts, that is for a bad intention without any external acts or without intentional omission of what is prescribed by the law nobody can face criminal responsibility (…)".

209Especially, it could provide material for the development of the interpretation of the article 23 of the 1815 Constitution, which, as it has been stated above, provided that: "No man shall be punished except in conformity with the existing laws and by the decree of the competent Magistrate." so as to encompass the requirement of punishibility solely for external human acts which have at least an abstract potential to generate some harm to the legally protected interests, cf. in this respect the recent decision of the Polish Constitutional Court from 17th July 2014, SK 35/12 going in this direction (printed in: OTK ZU 7A/2014, poz. 74).

210A fact to which the establishing of the University of Warsaw on the 19th November 1816 with a separate Faculty of Law and Administrative Sciences following the decree of Alexander I (cf.: Postanowienie naznaczające założenie Szkoły Głównej pod imieniem Królewskiego Uniwersytetu z dnia 7 (19) listopada 1816 r.—Dz.Pr.K.P. Volume XIII, Nr 51, pp. 90–95) contributed significantly.

### 7 Conclusions

The above analysed proceedings concerning the elaboration and implementation of the Criminal Code of 1818, outstanding for being the first example of the Polish modern codification of substantial criminal law, did reveal profound respect for and importance of the regulations Polish 1815 Constitution. It manifested itself in the only available expression of the public debate in the given political circumstances, namely on the Parliaments' forum.

Even though there can be hardly found any printed essays or newspapers articles considering the issue of the congruence of the 1818 Criminal Code with the Constitution, undoubtedly among the representatives of the Polish voters in the Parliament ("Sejm") of 1818, irrespectively whether they were in favour of the codification—voters being proportionally the most numerous in that time in continental Europe—the idea that a Criminal Code should implement and develop the principles of this fundamental law was wholeheartedly accepted. Even though for the Russian authorities, including the tsar Alexander I Romanov, the Constitution was merely a pretence meant to appease the Polish society in its longing for independence, an utterly instrumental subterfuge, which could be one-sidedly amended211 and disrespected when convenient, for the Polish society and especially for the elected representatives to Sejm it was perceived as veritable supreme law in the country, which shall be respected and implemented by the ordinary legislation. This striking contrast between the legalist position of the Polish society and arbitrariness of the growing Russian despotism eventually incited the people of Kingdom to resort to the last possible means in defence of the 1815 Constitution to a military uprising.212

It clearly shows the strength of the Polish Constitutionalism, not subdued by the difficult political circumstances and can be an inspiring example for our times.

211The best illustration of such a one-sided amendment is the addition to the Constitution by the Russian tsar Alexander I Romanov in a form of an "additional article to the constitutional law from 13 February 1825" ("Arykuł dodatkowy do ustawy konstytucyjnej królestwa Polskiego z dn. 13 lutego 1825 r.") which made the debates of the Sejm secret, cf. Handelsman (1915, pp. 58–59). 212The most solemn expression of this attitude is the Manifesto of the Polish People, proclaimed

on the Sejms session of 20.12.1830, i.e. 21 days after the outbreak of the November Uprising, specifying the reasons for this military resistance: cf. Sejm Królestwa Polskiego, Manifest Narodu Polskiego, p. 9: "Après tant d'affronts, a prés une violation si manifeste des guaranties jurées, violation qu'aucun gouvernement légitime, dans aucun pays civilise, ne se serait permise impunément, et qui, à plus forte raison, peut justifier notre soulèvement contre une autorité impose par la force, qui ne pensera que cette autorité a rompu toute alliance avec la nation, qu'elle lui a donné le droit de romper à chaque instant ses chaînes et d'en forger des armes?", which in paraphrased translation reads: "After so many violence, after the trampling of all the guarantees, which could justify not only an uprising against the power imposed by force, but which no rightful government in any civilised country could accept without punishment, who will not judge that the entire contract between the power and the nation has not been ruptured, that this nation became a slave, which any time could throw off the chains and convert them into weapons?".

## 8 Summary (Polish)

Studium poświęcone jest zagadnieniu hierarchicznej nadrzędności Konstytucji Królestwa Polskiego z roku 1815. Artykuł podzielony został na trzy zasadnicze części.

W pierwszej, wprowadzającej części omówiona została geneza Konstytucji roku 1815. W opracowaniu objaśniono zagranicznemu czytelnikowi w oparciu o ustalenia polskiej literatury sekundarnej, opierając się na ustaleniach takich autorów jak S. Smólka, S. Askenazy, H. Izdebski (w zasadniczej mierze), D. Nawrot, że Konstytucja Królestwa Polskiego z roku 1815 została wykoncypowana jako narzędzie propagandowe w zabiegach o poparcie polskiego i litewskiego społeczeństwa w trakcie wojen napoleońskich. Omówiono bliżej jej genezę, wskazując, iż była ona opracowywana począwszy od roku 1811 z udziałem polskich polityków orientacji pro-rosyjskiej, takich jak A Czartoryski, książę F. K. Drucki-Lubecki, M. K. Ogiński, czy L. Plater. Po przełomowym zwycięstwie szóstej koalicji z udziałem Alexandra I nad wojskami francuskimi, stała się kamieniem węgielnym odrodzonego na Kongresie Wiedeńskim, wieczyście połączonego z Cesarstwem Rosyjskim Królestwa Polskiego.

W kolejnej partii opracowania dokonano dla czytelnika zagranicznego naszkicowania zasadniczych postanowień Konstytucji z roku 1815 ze szczególnym uwzględnieniem tych regulacji, które odnoszą się do kwestii nadrzędności Konstytucji oraz prawa karnego.

Trzecia, właściwa cześć opracowania omawia zagadnienie nadrzędności Konstytucji 1815 rokuna przykładzie procesu legislacyjnego jedynej pełnej kodyfikacji całej gałęzi prawa (obok Kodexu Cywilnego Królestwa Polskiego z 1825 r., stanwiącego, jak wiadomo, w istocie drobną nowelizację Kodeksu Napoleona) jaka została przyjęta w Królestwie Polskim: Kodeksu Karzącego z roku 1818. Analiza stanowisk posłów i senatorów na Sejmie roku 1818 wprost potwierdziła, iż zarzut niekonstytucyjności tudzież argument o zgodności z Konstytucja był szeroko powoływany zarówno przez zwolenników jak i przez przeciwników projektu tej ustawy. Zgłoszone przez posłów poprawki dowodzą dążności posłów do możliwie dalekiego związania władzy sadowniczej normą prawnokarna w myśl rygorystycznie pojmowanej zasady nullum crimen sine lege certa i oświeceniowego ograniczania roli sędziego w sferze wykładni przepisów prawno-karnych.

Stad też skonstatować należy, iż zrodzona w Oświeceniu koncepcja hierarchicznej nadrzędności Konstytucji była już wtedy—przynajmniej wśród przedstawicieli polskiego Sejmu—rozpowszechniona. Uwidacznia to semantyka występująca w wypowiedziach posłów, którzy nierzadko odwołują się do "konstytucyjności" (zgodności z Konstytucją) proponowanego projektu, sematyka mająca przecież czytelną, późnooświeceniową prowenieniecję. Co więcej, analiza samego tekstu uchwalonego Kodeksu Karzącego dowodzi, iż stanowił on akt normatywny dostosowany do postanowień obowiązującej Konstytucji, a normy prawne, które mogłyby budzić wątpliwości jako sprzeczne z tym nadrzędnym aktem normatywnym występują absolutnie wyjątkowo.

### References

Czartoryski A (1888) In: Adam Gielgud (ed) Memoirs of Prince Adam Czartoryski, vol II, London Czubaty J (2011) Księstwo Warszawskie 1807–1815. Warszawa

Witkowski W (1988) Problem niezawisłości sądów a postawa Polskich prawników w Królestwie Kongresowym (Do 1876 r.). Palestra 7:35

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## Constitutional Precedence and the Genesis of the Belgian Constitution of 1831

#### Brecht Deseure

#### Contents

Abstract Constitutional precedence constitutes a defining element of modern constitutionalism. This chapter aims to elucidate the way in which this idea was embedded in the Belgian Constitution of 1831. It does so by combining a historical-genealogical approach with a legal one. The chapter begins with a discussion of the genesis of the Belgian Constitution in relation to the Fundamental Law of the United Kingdom of the Netherlands. It shows how the Belgian opposition's constitutional resistance to government policy created a debate over the interpretation of the Fundamental Law, which in turn provided the conceptual building blocks for the understanding of constitutional precedence in the 1831 Constitution. After examining the concept of legal order, the chapter explains how, in the eyes of the

B. Deseure (&)

Vrije Universiteit Brussel (VUB), Brussels, Belgium e-mail<EMAIL_ADDRESS>
© The Author(s) 2018

U. Müßig (ed.), Reconsidering Constitutional Formation II Decisive Constitutional Normativity, Studies in the History of Law and Justice 12, https://doi.org/10.1007/978-3-319-73037-0\_5

Belgian revolutionaries, the Belgian Constitution could be a legitimate replacement for the Fundamental Law as the foundational document of the state. The concern for constitutional precedence was expressed furthermore by recurring debates within the National Congress and the press over the constitutionality of the acts of both the constituting and constituted powers. The chapter then turns to the constitutional text and analyzes the way the precedence of the Constitution was legally anchored into the Belgian state system. Constitutional precedence was expressed by a combination of measures concerning (a) the special status and the endurance of constitutional law as compared to ordinary law and (b) the Constitution's status as the legally binding ground rule for the constituted powers. Finally, the precedence of the Constitution was symbolically expressed by a discourse of respect for the Constitution as the ultimate guarantee of the wellbeing of the state.

#### 1 Introduction

In 1852 a lavishly illustrated edition of the Belgian Constitution was published at the behest of Prime Minister Charles Rogier.1 It was only one of many government-sponsored initiatives to harness popular support for the Constitution in the years following the eventful year 1848.2 In stark contrast to its neighboring countries, the revolutionary wave failed to stir up any serious unrest in Belgium.3 The Constitution, the fruit of the Belgian Revolution of 1830, was credited for the young state's remarkable institutional stability. Its liberal character was supposed to have prevented the outburst of a popular revolt. The Constitution was thus celebrated in various forms, including the erection of the Congress Column in Brussel and the publication of the ornate illustrated edition of 1852.

The 1852 volume opens with an allegory depicting Belgium as a maiden. She wears a city crown and is accompanied by the Belgian lion, which rests its paw on the broken chains of slavery.4 Above her head she holds the biblical Tables of the Law inscribed with the words "Constitution de la Belgique 1831". The shield on which she sits is supported by Belgians of various professional classes: a farmer, a soldier, a judge, a militia member and an artisan. Iconological analysis has shown that Belgian and constitutional imagery are inextricably linked in this image, making it hard to separate the one from the other.5 And that was undoubtedly the message intended by its creators: indeed the Belgian state and its Constitution were linked to each other to such degree as to make the existence of the one directly dependent on the other. As the reference to the broken chains makes clear, the

1 Brown and Lagye (1852). On Rogier: Discailles (1907).

2 Huygebaert (2015) and Janssens (2001, p. 52).

3 Witte (2010).

4 On the political imagery of the young Belgian state see: Dubois (2005a) and Janssens (2005). 5 Huygebaert (2015).

Constitution consolidated the achievements of the Belgian Revolution of 1830, which was itself the founding event of the Belgian state. The Constitution thus incarnated the principles on which Belgian independence hinged, and guaranteed their endurance. The maintenance and the defense of the conceptual pair country and Constitution was a task entrusted to the Belgian people, depicted in the lower level.6 The image thus expresses both sacred respect for the Constitution and popular support by the Belgian people.

The exceptional position of the Constitution in the Belgian state system was not merely rhetorical. As this chapter aims to show, the symbolic precedence of the Constitution reflected the real, legal precedence it enjoyed in practice. The Constitution in Belgium was not like ordinary law: it was the founding document of the new state, legally anchoring the unalterable rights of the citizens and the division and exercise of power. Thus it constituted the ultimate juridical basis for both the legal and political order of the new state. The members of the National Congress, Belgium's constituent assembly, were acutely aware of the foundational character of the nascent constitutional document, calling it "an arch of alliance" on which the future wellbeing of the state would rest for generations to come.7

Precedence of constitution is here defined as the concept of establishing the political and legal order in a positive and uniform legal text which constitutes a prior and binding legal norm. The idea of constitutional precedence, a defining feature of modern constitutionalism, was still relatively new at the time of the Belgian Constitution's genesis. Its main historical competitor and conceptual antithesis, monarchical sovereignty, was ubiquitous in Restoration Europe.8 The Belgian Constitution was proclaimed on 7 February 1831 in the name of the Belgian people and in the absence of a ruling monarch.9 As this chapter will show, the triumph of the concept of constitutional precedence resulted from the power vacuum created by the Belgian Revolution against Dutch rule. Moreover, the Belgian opposition's resistance against government policy, based on the Fundamental Law of 1815, provided the conceptual building blocks for the understanding of constitutional precedence in the 1831 Constitution.

This chapter will use a genealogical approach to explain the emergence of constitutional precedence in Belgium in 1831. It will first turn to the Fundamental Law of 1815 and the debate over its interpretation, which gave rise to the Belgian constitutional opposition.10 After looking at the concept of "legal order", it will explain how the Belgian Constitution could, in the eyes of the Belgian revolutionaries, legitimately replace the Fundamental Law as the foundational document of the state.

6 Cf. Footnote 151.

7 Huyttens (1844–1845), vol 3, p. 369, 01/07/1831.

8 Kirsch (1999), Mirkine-Guetzévitch (1831), Mübig (2013) and Prutsch (2013).

9 Deseure (2016a, p. 12).

10See Delbecke's argument in De lange schaduw van de grondwetgever: perswetgeving en persmisdrijven in België (1831–1914), p. 93 that the press legislation in the Belgian Constitution cannot be understood without taking into account the Belgian opposition to the press policy of the Dutch minister Van Maanen.

Secondly, the chapter will turn to the constitutional text, analyzing the way in which the precedence of the Constitution was legally anchored into the Belgian state system.

### 2 From Fundamental Law to Belgian Constitution

## 2.1 The Fundamental Law and the Question of Royal Sovereignty

On 12 October 1830 the Constitutional Commission convened for the first time in Brussels to draw up a Constitution for the new country.11 The Provisional Government had created the Commission a few days after declaring Belgian independence from the United Kingdom of the Netherlands.12 In just two weeks the Commission produced a draft Constitution which went on to serve as the guiding document for the constituent debates in the National Congress. Most of the basic principles of the final Constitution were already present in this draft.13 Knowing that only a few months earlier the idea of Belgian independence was wholly alien to most participants in the political debate, this short span of time may be surprising.14 With the exception of the republican journalist Louis de Potter, even the most radical members of the Belgian opposition had not seriously suggested the option of a Belgian secession from the Kingdom of the Netherlands.15 Neither did the commissioners have previous experience with constituent work. Nevertheless, they managed to produce a balanced constitutional document containing a clear and consistent vision on the functioning of constitutional monarchy.

This result was only possible because the Commission started its activities after a period in which such issues had been widely discussed. During the fifteen years of its existence, the United Kingdom had seen much political debate on the basic features of the state. Especially in the years 1814–1817 and 1827–1830, the institutions and the Constitution of the Kingdom had been the object of intense discussion. Profound theoretical reflection on the nature and the architecture of constitutional monarchy had been produced. The members of the Constitutional Commission and the National Congress could draw on excellent political treatises such as the ones written on constitutional monarchy and ministerial responsibility by Joseph Lebeau, Jean-François Tielemans and Charles-Hippolyte Vilain XIIII, among others.16 In short, both ideological camps within the Belgian opposition,

11Van den Steene (1963).

12Bulletin des arrêtés et actes du Gouvernement Provisoire de la Belgique (1830), no. 5, p. 13, decree of 6 October 1830.

13Gilissen (1967, p. 60). The most fundamental difference with the final Constitution concerned the presence of an aristocratic Senate, which gave it a more conservative character.

14Aerts (2006) and Witte (2006, p. 59).

15Juste (1874).

16Lebeau (1830), Tielemans (1829) and Vilain (1830).

Catholics and Liberals, had ample time to develop their political-theoretical views by the time the convention started.

The question of the interpretation of the Constitution had indeed been at the core of the conflict between government and opposition that eventually led to the ad hoc separation of the Kingdom. The experience of debating the Constitution in the face of an ever more autocratic government had provided the Belgian elites with training in political and constitutional matters.17 In his opening speech for the National Congress, Louis de Potter spoke of "the arbitrariness of the ministers, which has forced us to advance every day more into a career of constitutional opposition". 18 Etienne de Gerlache, president of the Congress and member of the Constitutional Commission, called the experience useful for the political education of the Belgians:

(…) despite its exclusive and obtrusive character, the fifteen years of this semi-liberal, semi-absolutist regime proved to be useful for our political education.19

When the Belgian Revolution broke out, the ideas developed in the previous years could be put into practice.20 One must therefore look to the Fundamental Law and the debates it engendered when trying to understand the genesis of the modern concept of the Constitution in Belgium and its defining characteristic, namely constitutional precedence.

At first sight a constitutional document entitled Fundamental Law seems to relate more to the Ancien Régime than to Restoration constitutionalism. From the sixteenth century on, the leges fundamenales, which could be either written or unwritten, came about as the successors to the medieval state treaties (Herrschaftsverträge).21 Although they did constitute general rules of sorts for the government of the early modern kingdoms, these fundamental laws cannot be compared to modern constitutions. Far from constituting a prior set of unified and legally binding rules reflecting an underlying political theory, they were the pragmatic and changeable outcome of politically and historically informed negotiations between monarchs and their subjects.

The name given to the Constitution of the Kingdom of the Netherlands is deceptive however. In the constitutional construction devised by Gijsbert Karel Van Hogendorp (1762–1834), deliberate allusions to continuity with the prerevolutionary past were manifold. Van Hogendorp was the architect of the new Dutch state established after Napoleon's defeat at Leipzig.22 His constitutional draft,

17Witte (2016, p. 43).

18"(…) des progrès que l'arbitraire ministériel nous forçait chaque jour à faire dans la carrière de l'opposition constitutionnelle". Huyttens (1844–1845), vol. 1, p. 100, 10/11/1830.

19"(…) ce régime de quinze années, semi-libéral, semi-absolu, malgré sa tendance exclusive et envahissante, ne laissa pas d'être utile à notre éducation politique". De Gerlache (1859), vol. 2, p. XXIII.

20Marteel (2009, p. 411), Van Sas (1992, p. 434) and Witte (2016, p. 16).

21Stourzh (1977, p. 61).

22Breukelman (1912) and Slijkerman (2013, pp. 123–192).

written in 1812, served as the blueprint for the Fundamental Law.23 His 'Burgundian vision' was based upon an idealized view of the time when the Netherlands had been united under a single sovereign monarch.24 The names he introduced for the new institutions reflected that vision: Estates General (for the Parliament), Provincial Estates (for regional assemblies), knighthoods (for the representation of the nobility within the Provincial Estates). The Republic of the United Netherlands' venerable constitutional document, The Union of Utrecht, was not resurrected however. For Van Hogendorp, restoring the 'natural order' of the Burgundian Netherlands entailed bypassing the republican past.25

Van Hogendorp's invention of traditions is indicative of his conservatism and of his nostalgia for the prerevolutionary national past. At the same time the references to an idealized past served to conceal what was a modern conception of the Constitution.26 The successive constitutional experiments of the Batavian Republic and the Kingdom of Holland, followed by the annexation to the French Empire, had all left their traces on the post-revolutionary constitutional order.27 Van Hogendorp intended the Constitution to be a binding basic rule for the state's institutions and the exercise of power.28 When Prince William Frederick of Orange-Nassau, the son of the last stadtholder, was invited to take power in Holland in 1813 as 'Sovereign Prince', it was made clear to him that the conditions for his rule were to be laid down in a binding Constitution.29 When making his entry into Amsterdam, William himself made his acceptance of the throne conditional on "the guarantees provided by a wise constitution". 30 The Constitution was debated by a Constitutional Commission presided over by Van Hogendorp, and was adopted by an assembly of notables convened in Amsterdam on 29 March 1814. William was inaugurated as Sovereign Prince only after swearing an oath on the Constitution, the next day. At this time there was a clear awareness that the Fundamental Law constituted a binding contract between the monarch and the Nation, which rested on an implicit agreement between both parties.31

Sovereignty was not explicitly defined in the Fundamental Law. Van Hogendorp's vision of the Constitution relied, not on abstract theory or universal

23Colenbrander (1908), vol. 1, pp. 1–14.

24Aerts (2006, p. 25), Marteel (2012, p. 38), Slijkerman (2013, p. 157), Tamse and Witte (1992, p. 10), Van Sas (2004a, p. 462), Van Velzen (2005, p. 23), Van Zanten (2004, p. 26), and Worst (1992, p. 58).

25Van Velzen (2005, p. 23).

26Marteel (2009, p. 27) and Slijkerman (2013, p. 138).

27Aerts (2016, p. 47) and Velema (1998).

28Slijkerman (2013, pp. 195–196).

29Van Sas (1992, p. 179), Van Velzen (2005, p. 57). For a different opinion, see: Bos (2009, p. 86). 30Proclamation of the Sovereign Prince, 2 December 1813. Colenbrander (1908), vol. 1, p. 26. See: Koch (2013, p. 233) and Van Sas (2004b).

31Van Velzen (2005, p. 422). Koch argues that William considered the Constitution as a mere façade for monarchical government from the very beginning. His influence on the deliberations of the Constitutional Commission has moreover been considerable. Koch (2013, p. 247).

principles, but on the organic order of government based on history and national traditions.32 In his view, explicit reflection on political theory could only serve to obscure the right ideas on the exercise of power. It is no coincidence that Van Hogendorp was an admirer of the Enlish model of constitutional monarchy, the principles of which he tried to introduce in the Dutch context.33 The result was a model of mixed monarchy. Whereas the monarch was sovereign, his power was limited by an aristocratic and a (very moderately) democratic element. Royal power was not absolute since it was subject to the Constitution, which defined the preliminary rules of the political game for all actors including the King.

The uncertainties of the domestic political situation hardly permitted the monarch to make a bid for absolute sovereignty. When the Dutch regained national independence by shaking off French rule, a new form of state needed to be improvised on the spot. William could not know what was awaiting him on the other side of the Channel when he accepted the Dutch throne.34 The domestic situation and the international political context were uncertain. William's inauguration on 30 March 1814 preceded both Waterloo and the Congress of Vienna, marking the final defeat of Napoleonic France and the establishment of a Restoration order based on the monarchical principle respectively.

The consolidation of the Restoration order, from 1815 onward, allowed William to wield monarchical power in a more self-confident manner.35 The London Protocol of 21 June 1814 decided on the unification of Belgium and the Netherlands. On 16 March 1815, anticipating the final act of the Vienna Congress, William assumed the title of King of the Netherlands.36 When Van Hogendorp lost his place as the King's privileged counselor to Cornelis Felix Van Maanen (1769–1846), a gradual theoretical shift began.37 Van Maanen, former Minister of Justice under the Kingdom of Holland and president of the Imperial Court in The Hague, had been a faithful servant of the centralist imperial regime.38 His unshakeable belief in the principle of absolute royal authority induced him to develop a concept of monarchical sovereignty that preceded the Constitution. Peter Van Velzen has termed this innovative concept 'preliminary sovereignty'. 39 According to Van Maanen, the King had already been fully sovereign before the introduction of the Constitution. He had, in fact, freely consented to constitutional limitations on his royal power.40 Van Maanen did not go so far as to call the

32Aerts (2016, 48).

33Slijkerman (2013, p. 140) and Van Velzen (2005, p. 17).

34Koch (2013, p. 226), Lok (2011) and Van Sas (1992, p. 179).

35Van Sas (1992, p. 179) and Van Velzen (2005, p. 151).

36Colenbrander (1908), vol. 2, pp. 64–65. William had already supplied for the temporary government of Belgium since 1 August 1814 at the request of the allied powers. Rotteveel Mansveld and Velle (2016, p. 9).

37Van Velzen (2005, p. 53).

38Blok (1914, pp. 803–805).

39Van Velzen (2005, pp. 151–173).

40Aerts (2016, 52).

Constitution a charte octroyée which could be withdrawn at will, since the King had sworn an oath to uphold it.41 Nevertheless, he considered the King to be the only source of sovereignty and interpreted the Fundamental Law accordingly.

An increasing tendency towards autocratic and authoritarian government accompanied this theoretical shift.42 William did not consider the Nation as a contracting party, but as a passive receiver of royal benefactions. This meant that he systematically increased the royal competences in government using the argument that all the residual powers—those powers not explicitly attributed by the Constitution—were the exclusive competence of the King.43 In addition to interpreting the Constitution in a way that allowed for a maximum development of royal power, the government also took legislative initiatives to undermine the checks on royal power prescribed by the Fundamental Law. Parliamentary control over the budget was hollowed out, while the 'Blanket law' of 1818 and the 'Conflict law' of 1822 allowed the King to settle a major part of the decision-making by royal decree.44 Indeed, after 1822, the government rarely consulted Parliament.

The monarchical interpretation of the Fundamental Law defended by Van Maanen relied on a literal reading. Van Hogendorp, who no longer played a role in government, gradually came to contest this reading.45 He argued that it did not conform to the intentions of the Constitutional Commission. He conceded that the absolutist interpretation was facilitated by the lacunas and ambiguous formulations of the constitutional text itself.46 Indeed, these weaknesses enhanced the Fundamental Law's failure to effectively limit monarchical power.47

The most prominent issue which had not been convincingly resolved was that of ministerial responsibility. The issue touched the very nature of constitutional monarchy, since it was all about the degree to which the government could be held accountable by the representatives of the Nation. Art. 177 of the Fundamental Law of 1815 specified the juridical responsibility of ministers for crimes committed during the exercise of their functions.48 The accusation was put forward by the Public Prosecutor (whose appointment was a royal prerogative) before the High Court. Parliament needed to consent to the prosecution of a minister but it could not take the initiative. Peter Van Velzen has shown that both Van Hogendorp and the Belgian members of the Constitutional Commission of 1815 were confused on the exact implications of the article.49

41Van Velzen (2005, p. 157; 267).

42Koch (2015).

43Worst (1992, p. 71).

44Breukelman (1912), Van Velzen (2005, p. 248; 423), Marteel (2009, p. 207) and Van Zanten (2004, p. 104).

45Breukelman (1912) and Van Velzen (2005, p. 232).

46Van Velzen (2005, p. 233).

47Aerts (2016, p. 52).

48I.e. article 104 of the Fundamental Law of 1814.

49Van Velzen (2005, pp. 36–53).

Van Hogendorp had intended the article to allow for parliamentary initiative, so that the juridical responsibility of ministers would automatically result in (individual) political responsibility to Parliament. He also expected the ministers to be liable to prosecution for violating the Constitution. In his view, this was the ideal system of constitutional monarchy, as it had existed in England in the second half of the seventeenth and the first half of the eighteenth century.50 It guaranteed strong royal power tempered by respect for the Constitution and a certain degree of parliamentary control. He rejected the principle of royal inviolability however, since that combination threatened to result in parliamentary government and merely symbolic royal power in the long run. On the other hand, he did assume that royal inviolability would develop in practice.51

Discussion on these issues was rekindled by the presence of Belgian members in the Constitutional Commission of 1815, which was convened to adapt the Fundamental Law to the new reality of the integration of the Belgian territories. The liberals among them were strongly inspired by the political theory of Benjamin Constant. Objections were raised against the absence of a number of stipulations which they considered essential for a constitutional monarchy, including royal inviolability, ministerial responsibility to Parliament for violations of the Constitution and parliamentary confidence for ministers.52 These questions laid bare a fundamental division of opinions between the Northern and Southern members of the Commission. In the ensuing discussions, the Belgians were placated and led to believe that their demands were implied by Art. 177, without explicitly being mentioned in the constitutional text.

The curious confusion over the real implications of Art. 177 had grave consequences for the future of the United Kingdom of the Netherlands.53 It set the stage for the fundamental constitutional discussions of the following years, which shook the Kingdom to its foundations. The constitutional uncertainty would contribute to the Belgian opposition against the Dutch government and, eventually, set the agenda for the Belgian constituent debates in 1830. Central to these debates were the issues of the position of the Constitution as prior legal norm for governmental action and, following from it, the accountability of the King's government to Parliament.

50Van Velzen (2005, pp. 7–19).

51Van Velzen (2015, p. 121).

52Van Velzen (2005, pp. 36–53).

53In 1817 King William tried to come to terms with the opposition by offering to include the parliamentary initiative for the prosecution of ministers in the Constitution. For strategic reasons the opposition refused the offer, and argued that the parliamentary initiative was presupposed by the Constitution. Marteel (2009, p. 209) and Van Velzen (2005, pp. 99–130). For the development of ministerial responsibility in the Netherlands after 1848: Slijkerman (2011).

## 2.2 'Constitutionals' Versus 'Ministerials': Belgian Constitutional Opposition

The introduction of the Fundamental Law in the Belgian part of the Kingdom was controversial from the start. The unification of Belgium and Holland had been decided under the condition of establishing an "intimate and complete amalgam" between both territories.54 As mentioned above, the 1814 Fundamental Law was adjusted to the new territorial situation by a Constitutional Commission made up of Dutch and Belgian members. Among the most prominent changes introduced at the behest of the Belgian members was bicameralism. In order to obtain legitimacy for the new Constitution among the Belgians, King William decided to submit it to an assembly of notables, in the absence of a regular body representing the Nation in the Belgian territories. 796 of the 1323 notables who cast their vote rejected the Fundamental Law.55 The main reason for the rejection—and of the unpopularity of the Constitution with the Belgian population at large—was religious.56 Unification with the predominantly Protestant North was an unwelcome prospect to many Belgian Catholics. The Belgian bishops, headed by the intransigent archbishop of Mechelen, had openly campaigned against it because of its introduction of the freedom of worship.57 The King reacted by changing the outcome of the vote. He decided that abstentions should be counted as approvals, and that protest against the freedom of worship was an invalid reason for rejection, since that principle was one of the conditions imposed by the London Protocol.58 Thus, the Fundamental Law was introduced against the opinion of the conservative Belgian elites. The overtly Machiavellian manipulation of the plebiscite led large parts of Belgian public opinion to question the legitimacy of the new Constitution. Even those who agreed with it in principle were critical of the King's actions.

During this period, conservative Catholic thinking was strongly anti-constitutionalist, and harked back to prerevolutionary ancient constitutionalism and Gallicanism.59 However, a modern, liberal point of view developed alongside it. This strand of thinking embraced constitutional monarchy and welcomed the prospect of unification. The most important constitutionalist thinker in those years was Pierre-François Van Meenen, editor of the journal L'Observateur politique, administratif, historique et littéraire de la Belgique. 60 Van Meenen's thorough theoretical analyses of constitutional monarchy influenced a whole generation of Belgian liberals, many of whom would later take

54Colenbrander (1908), vol. 2, p. 27.

55Colenbrander (1908), vol. 2, p. 617.

56Gilissen (1958, p. 59) and Marteel (2009, p. 98).

57Demoulin (1989) and Marteel (2006, p. 46).

58The Protocol had in fact been drawn up by William himself and his Secretary of State Anton Falck. Koch (2013, p. 268).

59Marteel (2009, pp. 95–110).

60Le Roy (1897), Marteel (2006, p. 49), Van den Steene (1963, pp. 17–19).

part in the Belgian Revolution.61 The writings of Benjamin Constant were obviously an inspiration to this group.

Van Meenen and his followers were shocked to find that the Fundamental Law did not allow Parliament to hold the government accountable for its actions especially given the absence of parliamentary initiative for the prosecution of ministers.62 L'Observateur began a campaign of systematic opposition to the government, lobbying for ministerial responsibility and freedom of the press. In the face of the increasingly autocratic government of William I, this initiative failed to achieve practical results, but it did succeed in laying the theoretical groundwork for the large-scale Belgian opposition of later years.

L'Observateur's last issue appeared in 1820. In the same year the Estates General approved the decennial budget, their only real check on government policy. The opposition did not manage to take a stand in the following years, despite its protest against the Conflict Law of 1822 and the continued postponement of the creation of a High Court for the judgment of ministers. The Estates General were too divided along North-South lines to allow for organized opposition against the government.63 Moreover, economic prosperity in the South took away much of the oppositional drive.

The middle of the 1820s marked a turnabout. In 1815, political consciousness in Belgium had been relatively limited, a majority of the population remaining indifferent towards politics, but around the middle of the next decade, a new generation of liberal intellectuals entered the scene. These men were mostly born and educated under French or Dutch rule and had no active memories of the Old Regime.64 The first sign of the growing political awareness of this group was the foundation of the newspaper Mathieu Laensberg in Liège, which commented critically on political and constitutional issues.65 These younger liberals remained strongly under the influence of the older generation who had already embraced modern constitutional theory, especially as formulated by Benjamin Constant.66 Around the same time, a fundamental shift, triggered by recent political events, occurred within the Catholic intelligentsia and the Catholic opposition embraced a liberal-constitutional discourse.67 Both oppositional movements joined forces in 1827.

From 1828 on, debate between the Belgian opposition and the government flared up, both in the Estates General and in the press. The question of accountability of government was central to the controversy. This issue came to the fore in debates

61Marteel (2009, p. 49).

62Van Velzen (2005, p. 99).

63Fear for Belgian domination in the United Kingdom led most Northern members to support the government and to swallow their criticism on governmental and constitutional policy. Van Velzen (2005, p. 200).

64Marteel (2009, p. 326).

65Harsin (1930, p. 37). For the separate developments in Brussels and Liège: Marteel (2009, p. 281; 328).

66Marteel (2009, p. 327), Marteel (2012, p. 59) and Van Velzen (2015).

67Marteel (2009, pp. 265–310).

over ministerial responsibility to Parliament and the freedom of the press, which were strongly related.68 The press trials instigated by Minister Van Maanen were a major point of contention. Journals taking a critical stance towards the governments were increasingly being prosecuted for sedition and lese-majesty. The government argued that attacking the government equated to attacking the King, since the King was not inviolable and the minsters were responsible only to him. The newspapers on the other hand argued that the Fundamental Law implied ministerial responsibility to Parliament, much as Van Hogendorp has initially intended.69 As a consequence, they considered it legitimate to attack the ministers without harming the King.

These controversies and argumentations have been extensively described elsewhere. What counts for the present chapter is the ubiquitousness of the Fundamental Law in the debates.70 Both camps based their arguments on the Constitution, but they interpreted it in a fundamentally different way. By arguing that all their major demands were guaranteed by the Fundamental Law, the opposition tried to show that the King and the government behaved unconstitutionally. Real or supposed provisions of the Fundamental Law were therefore cited time and again, both in Parliament and in the press.71 The government reacted by refuting these arguments and promoting an alternative reading of the Constitution.

Whereas the government had previously been reluctant to make explicit statements on constitutional principles, it now actively engaged in the debate.72 In the session of the Estates General of 20 December 1827, Minister Van Gobbelschroy defended the gradual increase in royal power by stating that all competences that were not mentioned in the Constitution, were the domain of the King.73

In 1828, the oppositional newspaper Courrier des Pays-Bas published a vehement critique on the address from the throne.74 It accused the ministers of compromising the monarch by turning him into the mouthpiece for their own faulty interpretation of the Fundamental Law. Instead of recognizing the role of the press as the watchdog of constitutional government, they took all kinds of measures to curb public debate. The newspaper feared for the maintenance of the constitutional liberties, and argued that the address from the throne clearly illustrated "the profound ignorance of the ministerial writers in matters of our constitutional laws and the historical principles from which they emanate". 75

68Delbecke (2012, p. 44).

69Harsin rejects this interpretation: Harsin (1937, p. 167).

70Harsin (1937, p. 174), Van Velzen (2005, p. 422) and Witte (2016, p. 43). This was also true for the political press in the North: Van Sas (2004b, p. 467).

71Harsin (1930) and Marteel (2006, p. 46).

72Worst (1992, p. 63).

73Handelingen Tweede Kamer 1827–1828, pp. 117–119. Van Velzen (2005, p. 270).

74Courrier des Pays-Bas, no. 302 (29/10/1828), Marteel (2009, p. 365).

75"la profonde ignorance des écrivains ministériels en ce qui a rapport à nos lois constitutionnelles et aux principes historiques dont elles émanent".

Constitutional Precedence in Belgium 223

The debate on press freedom was reopened during the parliamentary session of 28 November 1828 when the Belgian MP De Brouckère argued for the abolishment of the much-hated press laws. In the ensuing debate, other Belgian members expanded the discussion into an inquiry on the nature of constitutional government itself. De Gerlache stated that he could not conceive of "a tempered monarchy without the separation of powers, or an inviolable King without a responsible minister". 76

He refuted the government's argument that the public law of the United Kingdom exclusively allowed those principles that were explicitly inscribed in the Fundamental Law:

They say that the separation of powers exists in England because it is formally inscribed in the Constitution, whereas this is not the case in our country. The opposite is true, however. There, the separation is considered a necessary condition for constitutional government. It has been introduced by the power of circumstance, since nowhere will you find it in writing.77

In his view, constitutional government presupposed a set of principles without which it could not exist, regardless of the exact wording of the Constitution.

In the session of 2 December 1828, Minister Van Maanen denied the existence of ministerial responsibility, by relying on a literal reading of the Fundamental Law:

The Fundamental Law of the Kingdom of the Netherlands is the only compass which should guide us in these matters. Many orators have powerfully defended the principle of ministerial responsibility, but none of them has been able to demonstrate that this responsibility is based on our Fundamental Law.78

By confirming the primacy of the Fundamental Law, Van Maanen accused the opposition of violating the Constitution by positing principles that were not explicitly mentioned in it. Indeed, he condemned the opposition's invocation of so-called absolute principles of constitutional government. Constitutional government was a relative concept, he contended, and exclusively related to the prescriptions of each Constitution individually:

(…) the concept of constitutional government is not undetermined and vague, but relative and dependent on the fundamental laws, constitutions or charters of each nation in

76"J'avoue franchement qu'il m'est impossible de concevoir la monarchie tempérée sans la distinction des pouvoirs, de concevoir un Roi inviolable sans un ministre responsable". Handelingen Tweede Kamer 1828–1829, p. 63.

77"En Anglerre, dit-on, la séparation des pouvoirs existe, parce qu'elle est formellement consacrée par la constitution; et il n'en est pas ainsi chez nous. C'est tout le contraire qui est vrai: cette séparation y est regardée comme une condition nécessaire du gouvernement constitutionnel. Elle s'y est introduite par la force des choses, car vous ne la trouvez écrite nulle part". Handelingen Tweede Kamer 1828–1829, p. 64.

78"La loi fondamentale du royaume des Pays-Bas seule doit nous servir de boussole dans cette matière; aussi est-il vrai que de tous les orateurs qui se sont si fortement prononcés pour le principe de la responsabilité ministérielle, aucun n'a démontré ni n'a pu démontrer que cette responsabilité est basée sur notre loi fondamentale". Handelingen Tweede Kamer 1828–1829, p. 114. Van Velzen (2005, p. 289).

particular. These fundamental laws constitute our only measure to determine what is constitutional and what is unconstitutional for this or that people.79

Jean-François Tielemans published an open letter to Van Maanen in reaction to the latter's speech.80 He started by citing Van Maanen's words on the position of the Fundamental Law as the sole guiding document for establishing the principles of state. He further developed this thought by underlining the inviolability of the Constitution, "the supreme law of all". Since it constituted a binding legal rule for all subjects, any violation of the Fundamental Law automatically implied criminal liability, whether or not the infraction was specified in the Criminal Code:

She must be inviolable, and so she is. He who violates her, be he a King, a Minister, a Magistrate or a private individual, is guilty towards society. The culpability exists, whether or not the act which constitutes the violation is foreseen by the penal code. It exists by the mere fact of the violation of the Fundamental Law, and the culprit henceforward falls under the jurisdiction of the tribunals and of the decent citizens.81

He also referred to stipulations in the Criminal Code that made every servant of the state punishable for violations of the Constitution, and to a regulation for the Council of Ministers which prescribed constitutional review for all laws, regulations and administrative measures.82

An additional guarantee for the observance of the Fundamental Law had been provided in the form of the oath on the Constitution sworn by every civil servant, from the King down to the humblest clerk. The oath explicitly made the mandate of the servants of the State, including the ministers, juridical. It was intended to make the Fundamental Law even more inviolable:

To be sure, this oath is useless, because in principle it is enough for a law to exist in order for it to entail the obedience of all. But the Fundamental Law of the Netherlands has been placed under the safeguard of the oath so as to make its execution even surer and the rights it consecrated even more inviolable.  Handelingen Tweede Kamer 1828–1829, p. 113.

80On Tielemans: Freson (1932) and Van den Steene (1963, pp. 18–19).

81"Elle doit être, elle est inviolable; et celui qui la viole, Roi, Ministre, Magistrat ou particulier, est coupable envers la Société. Pour que la culpabilité existe, il n'est pas nécessaire que l'acte, qui constitue la violation, soit prévu par un code pénal; elle existe par cela même que la loi fondamentale a été violée, et le coupable tombe dès lors sous la jurisdiction des tribunaux ou des honnêtes gens". Tielemans (1829, p. 5).

82Tielemans (1829, p. 17).

supreme law, which is sacred, common and superior to both those who govern and those who are governed. He who violates it is responsible towards society, the base of which he undermines, and towards the individuals whose interests and rights he injures.83

It followed that the mere fact that the Constitution existed meant that ministers were accountable for any violation of it. The oath simply made this responsibility explicit and legally binding. Tielemans implicitly suggested that, by arguing to the contrary, Van Maanen had in fact denied the Fundamental Law's authority. He insisted that both ministerial responsibility and royal inviolability were inherent in constitutional government.84 The alternative was non-responsible government, or in other words, despotism.

The radical politician Adelson Castiau made a similar argument in two pamphlets on ministerial responsibility.85 Putting the development of constitutional monarchy in a historical perspective, he emphasized the conceptual unity of royal inviolability and ministerial responsibility as a guarantee for responsible government and a bulwark against despotism. The monarch had received his hereditary mandate and his extensive powers from the Nation, and in return the Nation desired responsible government.86 Castiau, too, contented that these principles, although not being prescribed by the letter of the Fundamental Law, were clearly present in its spirit. Ministerial responsibility to Parliament was automatically implied by the idea of representative government, he argued:

Let us never forget that representative government means the government of the opinion, and that as long as it will boldly and resolutely follow the constitutional ways opened up to its expression, the reign of unpopular ministers will be short.87

Castiau called the theory of "ministerial irresponsibility" defended by the ministry "a doctrine which is destructive of representative government and undermines all monarchical stability". 88 He accused those who argued for it of being "blinded by a Judaic respect for the text of our fundamental law, the spirit of which they fail

83"Ce serment, à la vérité, était inutile, puisqu'en principe il suffit qu'une loi existe pour qu'elle entraine forcément l'obéissance de tous; mais en plaçant la loi fondamentale des Pays-Bas sous la sauve-garde du serment, on a pensé que l'exécution n'en serait que plus sûre, et les droits qu'elle consacre plus inviolables. Nous devons donc le reconnaître: notre pays possède une loi suprême, sacrée, commune et supérieure aux gouvernans comme aux gouvernés. Quiconque la viole est responsable envers la société dont il ébranle la base, et envers les individus dont il blesse les intérêts et les droits". Tielemans (1829, p. 5).

84Tielemans (1829, p. 10).

85On Castiau: Philippart (1984).

86Castiau (1829a, p. 2).

87"N'oublions jamais que le gouvernement représentatif est le gouvernement par l'opinion, et qu'aussi longtemps qu'elle suivra, avec fermeté et hardiesse, les voies constitutionnelles ouvertes à son expression, le règne d'un ministre impopulaire sera de courte durée". Castiau (1829a, p. 28). 88"une doctrine destructive du gouvernement représentatif et subversive de toute stabilité monarchique". Castiau (1829a, p. 10).

to understand". 89 Castiau emphasized the legally binding character of the Fundamental Law on which these principles were based. Those officials who denied their existence made themselves guilty of perjury, legitimizing revolt and anarchy. Indeed, he reminded the ministers that the Nation automatically had the right to resist the government in case the latter violated the legal order:

(…) they know, as we do, that on the day when power abandons legality, legality moves over to the side of the resistance.90

With this last quote, Castiau anticipated the arguments that would later serve as the legitimation for the Belgian Revolution.

For Tielemans, Castiau and their sympathisers, the Fundamental Law implied all the principles of modern constitutional monarchy. This meant, according to them, that it should be read in the spirit of Benjamin Constant. Not doing so, they contended, automatically resulted in paradoxes and absurdities. The principles in question therefore did not need to be spelled out in the Constitution in order to be logically presupposed. Many in the opposition called for an explicit mentioning of ministerial responsibility in the laws, in order to prevent the ministers from further exploiting the ambiguities of the existing formulation. Castiau rejected this proposal though, stating that the Constitution already contained sufficient guarantees.91 In his view, it was an illusion to think that a more explicit formulation would stop ministers from abusing their powers. An admirer of Constant, he counted on the active surveillance of an independent national representation and a well-informed public opinion as the only effective means to control the government.

In their defense of the government, the ministerial pamphleteers targeted this supposed spirit of the Constitution. By appealing to a minimalistic interpretation, they succeeded in keeping its status as legally binding basic rule intact, while at the same time restricting its impact radius to a minimum.92 The ministerial point of view was expounded in a range of pamphlets, all of which explicitly referred to the Fundamental Law. In his speech of 2 December 1828, Van Maanen set the tone by disclaiming any constitutional principle that did not literally figure in the Constitution. Ministerial authors developed this argument, accusing the opposition of intentionally misinterpreting the Constitution for their own particular interest.

89"aveuglés pas un respect judaïque pour le texte de notre loi fondamentale, dont ils méconnaîtraient l'esprit". Castiau (1829a, p. 10).

90"(…) ils savent, comme nous, que le jour où le pouvoir abandonne la légalité, cette dernière passe du côté de la résistance". Castiau (1829a, p. 12).

91Castiau (1829a, pp. 24–39). He made an exception for the ministerial countersign, judging that the silence of the Constitution on this issue was deplorable. However, since neither the English nor the French Constitutions contained provisions on this point, he denied that it could be used as an argument against the existence of ministerial responsibility. Castiau (1829b, pp. 17–18).

92Marteel (2009, p. 365) and Van Zanten (2005, p. 290).

Such was the reasoning of C. Asser, in his anonymously published pamphlet De la responsabilité ministérielle d'après le droit public du Royaume des Pays-Bas. 93 He started with a worried remark on the newspapers' perversion of the most precious constitutional prerogatives:

Every Belgian who loves his country and who attentively examines the spirit and the tendency of some of our newspapers, must be troubled by the deplorable abuse made of our most precious constitutional prerogatives.94

Such exaggerated claims as those made by the oppositional newspapers could only be the work of foreign troublemakers

who, being indifferent to the prosperity of our fatherland, and having no knowledge at all of our customs and of our laws, apply principles which our Fundamental Law refutes to our public law.95

Since the Constitution did not contain any article in support of their claims, these people invoked the constitutions of England and France instead. By doing so however, they seemed to forget that the Fundamental Law constituted the sole legal ground of public law in the United Kingdom:

(…) the rights of the Belgian subjects, as well as the rights of the government, are determined only by the pact concluded between the head of state and the Nation. These rights are mutually sealed under the oath.96 We must rely only on the principles of OUR public law, and exclusively invoke the dispositions of our Fundamental Law.97

The principles of the Fundamental Law could be deduced exclusively from the articles and dispositions it contained. It could not be induced from any theory of constitutional monarchy outside of the constitutional text. For Asser, claiming that constitutional government by definition implied ministerial responsibility was the same as pretending that:

93Van Kuyck (1914). Asser was a public servant at the Council of State and a personal friend of Van Maanen. The brochure was published on the latter's initiative to support Van Maanen's denial of ministerial responsibility in the Estates General on 2 December 1828. Van Velzen (2005, p. 290).

94"Tout Belge, ami de sa patrie, qui examine d'un œil attentif l'esprit et la tendance de quelques-uns de nos journaux, s'afflige sans doute de l'abus déplorable que l'on fait d'une de nos prérogatives constitutionnelles les plus précieuses". Asser (1828, p. 1).

95"qui sont indifférent à la prospérité de notre pays et qui, sans aucune connaissance de nos mœurs et de nos lois, viennent appliquer à notre droit public des principes repoussés par notre Loi Fondamentale". Asser (1828, p. 1).

96"(…) les droits des sujets belges, aussi bien que ceux du gouvernement, sont uniquement déterminés par le pacte conclu entre le chef de l'Etat et la nation, et réciproquement scellé sous la foi du serment". Asser (1828, p. 2).

97"(…) nous ne devons nous appuyer que sur les principes de NOTRE droit public, et n'invoquer que les dispositions de notre Loi Fondamentale". Asser (1828, p. 3).

the words Fundamental Law, Charte, Constitution, are not undetermined expressions when taken individually, and that it is possible to understand their meaning, their nature and their extent by other means than by the principles and dispositions which they contain.98

The King himself had insisted on limiting his power by introducing a liberal Constitution, but he was completely free to act within the circle of his constitutional competences.

The government reacted to the Courrier des Pays-Bas' criticism in a anonymously published pamphlet entitled Quelques observations fondées sur les termes exprès de la Loi Fondamentale. 99 The title perfectly illustrates the way in which the ministerial writers turned the opposition's constitutional logic to their advantage. The author, Tielman Olivier Schilperoort, repeated Van Maanen's state theory by stating that sovereignty emanated from the King only. The latter had granted a Constitution of his free will.100 The opposition's mistake was to confuse constitutional government with representative government. Sovereignty consisted of both the legislative and executive powers and was entirely in the hand of the monarch:

The great goal of a Fundamental Law in a constitutional state is to prevent those shocks and revolutions, by expressly determining the exercise of sovereignty (…), not by the separation of powers but by their union.101

It followed that the Fundamental Law did not allow for ministerial responsibility to Parliament. Having sworn to maintain the Constitutional in all its aspects, it was the King's duty to refute the unfounded and unconstitutional demands of the opposition:

In his inaugural oath, the King swears, among other things, that he will not tolerate any deviation from the Fundamental Law, on whatever occasion and on whatever pretext. Thus, the King has personally engaged himself to maintain the fundamental pact against every aggression, even those instigated by ignorant or exaggerating writers.102

Baron Goubau d'Hovorst defended the ministerial point of view in his speech for the First Chamber on 16 May 1829.103 The goal of his intervention was to

98"les mots de Loi Fondamentale, Charte, Constitution, n'étaient pas des expressions indéterminées lorsqu'on les prend isolément, et comme s'il était possible de connaître leur sens, leur nature et leur étendue, autrement que par les principes et les dispositions dont elles sont composées". Asser (1828, p. 14).

99Olivier Schilperoort (1828), Some observations founded on the express terms of the Fundamental Law. Zuidema (1921) and Van Velzen (2005, p. 289).

100Olivier Schilperoort (1828, p. 12).

101"Le grand but d'une Loi fondamentale d'un état constitutionnel est de prévenir ces chocs et ces révolutions, en déterminant d'une manière expresse l'exercice de la souveraineté, non (…) par la séparation des pouvoirs, mais par leur union". Olivier Schilperoort (1828, p. 10).

102"Le Roi (…), par le serment inaugural, (…) jure entr'autres qu'il ne souffrira pas qu'on s'écarte de la Loi Fondamentale, en aucune occasion, ni sous aucun prétexte. C'est ainsi que le Roi a pris l'engagement personnel de maintenir le pacte fondamental contre toutes agressions, voire même celles de l'ignorance ou de l'exagération des écrivains". Olivier Schilperoort (1828, p. 5).

103Varenbergh (1884–1885) and Van Velzen (2005, p. 315).

investigate whether the oppositional demands, expressed in the recent petitioning campaign, were admissible.104 Not surprisingly, he systematically rejected the demands, grounding his refutation on articles of the Fundamental Law. On the subject of the role of the government in the organization of public education, he disclaimed the opposition's demand by pointing out that it harmed the constitutional order:

This reverses the order instated by Art. 226 of the Fundamental Law, and it evidently harms both the ancient and the modern rights of the Sovereign of the Netherlands.105

On the same grounds he argued against ministerial responsibility:

Those who demand ministerial responsibility are blinded: given the organization of our Kingdom and the way in which things are being done here, introducing it would require changing the Fundamental Law.106

Such a system was not admissible without a change of Constitution. Goubau-d'Hovorst, also refuted the idea that a constitutional government was impossible without ministerial responsibility:

Our government will be a constitutional government of a special kind (…). As long as it exists, one must march with it just as it is, and religiously adhere to the prescriptions of the Fundamental Law on which it is founded.107

He concluded by warning against the dangers of the petition movement, which aroused passions and effervescence in the people. All this militant invocation of constitutional rights reminded him of the Brabant Revolution, which he had witnessed himself, and its Northern counterpart, the Patriot uprising against stadtholder William V:

What we are witnessing today is taking the same turn as in those times when one spoke of nothing else but the Joyeuse Entrée, just like today one speaks of nothing else but the Fundamental Law.108

104On the petition campaigns: Harsin (1930, p. 53), Tamse and Witte (1992, p. 36), Wils (2009, p. 50) and Witte (2006, p. 79).

105"C'est renverser l'ordre établi par l'art. 226 de la Loi Fondamentale, et porter évidemment atteinte aux droits tant anciens que modernes du Souverain des Pays-Bas". Goubau-d'Hovorst (1829, p. 18).

106"Ceux qui demandent cette responsabilité parlent en aveugles: d'après la manière que notre Royaume est organisé et que les affaires s'y traitent, pour l'introduire, il faudrait changer la Loi Fondamentale". Goubau-d'Hovorst (1829, p. 23).

107"Notre gouvernement sera un gouvernement constitutionnel d'un genre particulier (…). Tant qu'il existe, il faut marcher avec lui tel qu'il est, et se tenir religieusement à ce que prescrit la Loi Fondamentale sur laquelle il est basé". Goubau-d'Hovorst (1829, p. 25).

108"Ce que nous voyons aujourd'hui prend la même marche que dans ces temps-là, on n'avait à la bouche que la Joyeuse Entrée, comme aujourd'hui on n'a à la bouche que la Loi Fondamentale". Goubau-d'Hovorst (1829, p. 50). The Joyous Entry was the inaugural charter of the Dukes of Brabant, on which the Brabant revolutionaries based their claims.

To allow the petition movement to continue would be to expose the state to the danger of another disorderly uprising based on a faulty reading of the Constitution.

Time and again the ministerial apologists denied the opposition's claim that constitutional government implied a fixed set of unalterable principles, and that the Fundamental Law consecrated these principles by necessity. Only the letter of the Constitution defined the state system of the United Kingdom. Appeals to any other source, text or theory than the Constitution itself were ipse facto irrelevant. Indeed, every Constitution needed to be understood and analyzed individually, and not on the basis of a set of presupposed common principles:

Let us conclude from what precedes that, since every constitution must be judged after its own tenor and its own spirit, we can never invoke the institutions of other nations when commenting on our Fundamental Law and determining the nature and the implications of its dispositions. These nations share with us only the fact of being ruled by constitutional laws. Apart from that, they are far from finding in these laws the same guarantees as we do in ours.109

In his Royal Message of 11 December 1829, the King himself confirmed the views on sovereignty propagated by his government, and formally denied the existence of ministerial responsibility to Parliament.110

#### 2.3 Towards a New Legal Order

As we have seen, respect for the existing legal order based on the Fundamental Law was central to the argumentation of both the government and the opposition. Over time, both Liberals and Catholics within the Belgian opposition turned to modern constitutionalism as the surest way to realize their respective programs. Liberal campaigning for modern constitutionalism in the spirit of Benjamin Constant already began in 1814, with Van Meenen's publication on the topic.111 The next generation of Liberals built upon his ideas and further developed them in newspapers such as Le Politique, Le Courrier des Pays-Bas and L'Emancipation. 112 Catholic thinking underwent a more fundamental transformation over time, as

109"Tirons de ce qui précède la conséquence que, toute constitution devant être jugée d'après sa teneur et son esprit, nous ne pouvons jamais, lorsqu'il s'agit de commenter notre Loi Fondamentale et de déterminer la nature et l'étendue de ses dispositions, invoquer les institutions d'autres nations qui n'ont de commun avec nous que d'être également régies par des lois constitutionnelles, mais qui, au reste, sont loin de trouver dans ces lois les garanties qui nous ont été assurées par les nôtres". Asser (1828, p. 20).

110Bijlagen Handelingen Tweede Kamer 1829–1830, pp. 741–743. Marteel (2012, p. 54), Van Velzen (2005, p. 329) and Worst (1992, p. 72).

111Le Roy (1897), Marteel (2009, p. 49), Van den Steene (1963, pp. 17–19).

112Harsin (1930), Vermeersch (1992), Witte (1979) and Wouters (1958).

Stefaan Marteel showed in his meticulous reconstruction of the development of Catholic thought under the United Kingdom.113 The Old Regime ideal of a Catholic state Church dwindled as Belgian Catholics were confronted with a Protestant King intent on closely supervising the spheres of religion and education.114 The idea that the autonomy of the Church would be better guaranteed by a separation of Church and State and the proclamation of absolute religious freedom, gained popularity.

Despite their radically different outlooks on society, the oppositional groups came to agree on the central importance of the constitutional text. When both groups joined forces in 1827, their key demand was the exact implementation of the Fundamental Law in all its points.115 This implied not only recognition of the liberties and the division of powers enshrined by it, but also of its binding legal force. The issue of ministerial responsibility, which raised the most controversy between the two parties, went to the core of this idea. It implied making the Constitution's role as the normative rule for the actions of the executive power legally enforceable. As mentioned before, Art. 177 of the Fundamental Law foresaw the creation of a High Court for the judgement of ministers accused of violating the Constitution. The article remained a fiction however, since the government postponed the creation of the Court indefinitely.116 The opposition in turn accused it of causing legal insecurity. Likewise, the opposition opposed the absence of legal means to dispute the introduction of unconstitutional laws, such as the ones against the freedom of the press.

The course of events suggests that the government only explicitly adopted a constitutional discourse in reaction to the opposition's incessant claims based on the Fundamental Law. It succeeded in turning these claims to its advantage by developing its own, minimalist interpretation of the Constitution and using it to denounce the oppositional demands as illegal. The logic of legal order turned to the opposition's disadvantage at the moment when events took a revolutionary turn. Riots broke out in Brussels against the Dutch government during the night of the 25 August 1830.117 In the succeeding weeks new power structures emerged on the local level which gradually replaced the official ones. The government tried to appease the rioters by giving in to many of the opposition's demands, including the dismissal of the unpopular minister Van Maanen.118

113Marteel (2009).

114Marteel (2009, pp. 265–320).

115Marteel (2009, p. 347).

116Van Velzen (2005, p. 175). Marteel, on the other hand, argues that the debate on the High Court had no bearing on the Southern opposition's demand for ministerial responsibility. Marteel (2009, p. 242).

117Witte (2006, p. 51).

118Van Velzen (2015, p. 58), Witte (2006, p. 57), Witte (2016, p. 16). Although William I went as far as to dismiss Van Maanen, conceding on the point of ministerial responsibility was impossible for him. It would have changed the very nature of his rule, which he saw as the ultimate guarantee for the country's stability. The opposition continued to press this point, as a fundamental transformation in the exercise of power was exactly what it aimed for.

In the meantime, the opposition was confronted with the paradox of on the one hand invoking the Fundamental Law and on the other hand, waging armed—and thus illegal—protest. The oppositional press continued to refer to the Fundamental Law to legitimatize their demands. The newspaper Courrier des Pays-Bas encouraged the Belgian delegates to the Estates General to persist in their "legal resistance" against "the violations of the Fundamental Law" and against the "anti-constitutional projects of the ministers". It confirmed that what the opposition desired was respect for the will of the Fundamental Law, and added: "We repeat that we are neither waging a revolution nor an insurrection". 119 The Courrier de la Sambre called on the Fundamental Law to protest against the convocation of the Estates General in The Hague instead of Brussels even though it was the latter city's turn to serve as the capital:

The convocation of the Estates General in The Hague is a formal violation of the Fundamental Law. In the present circumstances, this violation may produce fatal results unless it is legally resisted.120

The French newspaper Le Constitutionnel commented: "The insurrection is definitely national and constitutional". 121 Radical newspapers on the other hand accused the Belgian members of the Estates General attending the meeting of the Estates in The Hague of being in league with a government that repressed the rights of the Belgian Nation.

The legitimacy of the opposition was at stake. Thus far, the Fundamental Law had provided the ultimate legal basis for its claims. By opting for open rebellion, the opposition risked invalidating its whole enterprise, as well as alienating those citizens who wished to remain within the legal order. King William put the finger on the sore spot when, in his proclamation of 5 September 1830, he denounced the insurgents' revolt against the legal order. William called the opposition's "return into the legal order" a precondition for opening negotiations over the Belgian demands.122 The proclamation caused a change in tone in the oppositional newspapers, who took offense at the King's minimisation of the conflict and his use of the term insurgents. As the government seemed to refuse to take the Belgian grievances seriously, the legality of the existing order itself was increasingly called into question. The Courrier des Pays-Bas commented:

We are no longer under the legal order organized by the Minister Van Maanen, because that legal order was tyrannical for us. Since it is nothing but organized oppression

119"Nous le répétons, nous ne sommes ni en révolution, ni en insurrection". Courrier des Pays-Bas no. 244, 01/09/1830.

120"La convocation des états-généraux à La Haye est une violation formelle de la loi fondamentale, violation qui pourrait dans l'état des choses avoir les plus funestes résultats, sil l'on ne s'y opposait légalement". Courrier de la Sambre no. 134, 6/09/1830.

121"L'insurrection est décidemment nationale et constitutionnelle". Quoted in: Courrier de la Sambre no. 140, 13/09/1830.

122Courrier des Pays-Bas no. 252, 09/09/1830.

covered with a varnish of legality, this supposed legal order must be modified and changed.123

We must return into the legal order. The legal order! It is easier said than done. This order, which Mr. Van Maanen had organized so well, and which is the fruit of fifteen years of oppression, is exactly the object of our complaints.124

The newspaper contested the legality of the existing order on account of its tyrannical character and of the harm it caused to the Belgian Nation.125 Le Vrai Patriote maintained that a people was free to choose a new leader when the social contract was violated.126 As the opposition left the legal order behind, the rights of the nation were cited as the only legitimate source of authority. The Courrier de la Sambre wrote:

Do not tell us that we need the consent of the Estates General. We are now outside of the legal order. Every measure is legal at present, as soon as it is founded on the approval of the nation.127

The bloody September Days in Brussels brought about the final turnabout. The killing of Belgian citizens by the Dutch troops was presented as a final attack on the Belgian Nation by which the Dutch government forfeited its remaining claims to legitimate authority. The Provisional Government of Belgium was created in the wake of the events. The Courrier des Pays-Bas proclaimed that the only legitimate source of authority in the contemporary world was the people's right to self-determination.128 From that moment on, respect for the old legal order need not concern the Belgians any more, the newspapers agreed:

123"Nous ne sommes plus dans l'ordre légal tel que le ministère Van Maanen l'avait organisé, parce que cet ordre légal était tyrannique pour nous, et ce prétendu ordre légal n'étant autre chose que l'oppression organisée et couverte d'un vernis de légalité, c'est lui qu'il faut modifier et corriger". Courrier des Pays-Bas no. 256, 13/09/1830.

124"Il faut rentrer dans l'ordre. L'ordre! C'est chose aisée à dire, mais cet ordre que M. Van Maanen a si bien arrangé et qui est le fruit de quinze ans d'oppression, c'est précisément l'objet de nos plaintes". Courrier des Pays-Bas no. 260, 17/09/1830.

125"Cet ordre, c'est l'oppression de le Belgique systématiquement organisée avec un faux semblant de légalité". Courrier des Pays-Bas no. 260, 17/09/1830.

126Le Vrai Patriote no. 29, 10/11/1830.

127"Et qu'on ne dise pas qu'il faut le consentement des états-généraux; nous sommes aujourd'hui en dehors de l'ordre légal; toute mesure est légale en ce moment dès qu'elle a pour base l'assentiment de la nation". Courrier de la Sambre no. 137, 09/09/1830.

128"Aujourd'hui ce n'est pas le fait antérieur, ni les convenances de tel souverain qui peuvent autoriser sans leur consentement respectif la réunion de deux peuples en une seule famille politique. Le principe qui a triomphé en septembre est l'association consentie. (…) Le principe de l'association consentie, est aujourd'hui tellement inhérent au principe du gouvernement populaire, que le règne de la liberté ne pourra pas autrement s'établir en Europe, qu'en laissant à chaque peuple la faculté de s'unir à l'association politique qui est le plus conforme à ses vœux". "Nowadays neither prior facts nor the liking of such or such sovereign can authorise, without their respective consents, the reunion of two peoples into one political family. The principle which has triumphed in September is that of consented association. (…) The principle of consented association is today so inherent to popular government that the reign of liberty cannot establish itself in Europe but by leaving each people the faculty to unite with the political association most conforming to its wishes".

(…) this question has been answered during the days of 23, 24, 25 and 26 September; this solution had to be solemnly announced; it is the only title of the Provisional Government; it is the source of its legitimacy.129

The opposition overcame the revolutionary paradox by basing its legitimacy on a natural law norm that transcended the legal order: the rights of the Nation. Since the existing legal order, enshrined by the Fundamental Law, seemed only harmful to its interests, the Nation legitimately demanded the establishment of a new one. Henceforward, the despotism of the Dutch government was invoked as the legal ground for Belgian independence.130 On 4 October 1830, the Provisional Government declared Belgian independence in the name of the revolutionary Belgian people.131 Two days later, it decreed elections for a National Congress and the creation of a Constitutional Commission to draw up a draft Constitution.132 It was stressed that the present situation was a provisional one, aimed at establishing a legal order consecrated by a new Constitution drawn up by the representatives of the Nation.

Although the Fundamental Law was discarded in the process, the discourse of constitutional legitimation remained intact. The constituent debates received priority in the National Congress even though the young state was faced with pressing political, economic and military needs. Despite the fact that many were critical of both the draft Constitution's conservative slant and the "excessive" time spent on debating it, protests against prioritizing the constitutional issue were few and far between.133 Newspapers articulated high expectations for the new Constitution, while many private individuals published their own constitutional drafts or addressed them to the Congress.134 The Belgian Constitution was clearly expected to become what the Fundamental Law had failed to be: an immutable basic rule (a "law of laws" according to the Journal d'Anvers) which, by guaranteeing the liberties of the citizens and clearly defining the division of powers, assured the future wellbeing of the state.135

129"(…) cette question a été résolue dans les journées de 23, 24, 25 et 26 septembre; c'est cette solution qu'il fallait solennellement faire connaître; c'est le seul titre du gouvernement provisoire; il y puise sa légitimité". Courrier des Pays-Bas no. 278, 05/10/1830.

130See the opening speech of Louis de Potter for the National Congress on 10 November 1830, Huyttens (1844–1845), vol. 1, p. 100. E.g. the speech by Etienne de Gerlache as president of the Congress at the occasion of the inauguration of the Regent on 25 February 1831: "Il est arrivé qu'un prince, plein de préjugés et d'entêtement, s'est imaginé qu'une nation lui appartenait parce qu'on la lui avait cédée par traités; il a cru pouvoir la tromper toujours, avec un système de constitution qu'il tournait et violait à son gré, lui imposer sa langue, sa religion, ses créatures: cette nation fait une révolution, et le prince est renversé et puni". Huyttens (1844–1845), vol. 2, p. 595. 131Bulletin des arrêtés et actes du Gouvernement Provisoire de la Belgique (1830), no. 4, p. 3,

decree of 4 October 1830.

132Bulletin des arrêtés et actes du Gouvernement Provisoire de la Belgique (1830), no. 5, p. 13, decree of 6 October 1830.

133Magits (1977), vol. 1, p. 391.

134Magits (1977), vol. 1, pp. 333–379.

135Journal d'Anvers, 18–19 October 1830.

The discourse of the Belgian newspapers on the Fundamental Law underwent a drastic transformation in the meantime. Independence, and the prospect of a new Constitution, left the Fundamental Law bereft of the support it had formerly enjoyed in Belgium. Not only had it been introduced against the will of the Nation, as the newspapers were keen to remember, it had also failed to protect the Nation against royal despotism. It came to be considered the tool of a Machiavellian regime. On the eve of the proclamation of the Belgian Constitution, the radical newspaper Courrier de la Sambre wrote:

This work of iniquity called the Fundamental Law, was destined to be the straightjacket of two peoples (…). There was no other option than to bow to this Machiavellism for fifteen long years, and even, in the last years, to invoke it as the anchor of salvation.136

The newspaper considered it ironic that the Belgians had been reduced to calling on the Fundamental Law as their last resort against royal despotism, when it had served as the support of that very regime in the first place.

Only one year earlier, on 22 January 1830, the same newspaper had written about the Fundamental Law in strikingly different terms:

All demand the pure and simple execution of the Fundamental Law, and should the government dare to boldly lay violent hands on this sacred arch, and venture to commit a coup by suspending and annulling the Constitution…. 137

In his history of the United Kingdom of the Netherlands, Etienne de Gerlache later commented that the extreme disdain with which the Belgian founding fathers treated the Fundamental Law was unwarranted, since the problem was not the charter itself but its interpretation.138 De Gerlache's analysis is confirmed by the fact that no less than 40% of the articles of the Belgian Constitution were copied from the Dutch Fundamental Law.139 Indeed, what had been at stake for the Belgian opposition was not the exact wording of the Fundamental Law but the recognition of the principles of modern constitutionalism which it considered to lay at its base. Because of the government's refusal to recognize these principles, the

136"Cette œuvre d'iniquité, qui, sous le nom de loi fondamentale, devait être la camisole de force de deux peuples. (…) Force fut donc de ce soumettre pendant 15 longues années à ce machiavelisme; force même fut, dans les dernières, de l'invoquer comme ancre de salut". Courrier de la Sambre, 6/02/1831.

137"(…) tous réclament l'exécution pure et simple de la Loi fondamentale: et si le pouvoir avisait de porter une main téméraire sur cette arche sainte et se permettait de frapper un coup d'état en suspendant la constitution et en la déclarant anéantie (…)". Courrier de la Sambre, 22/01/1830.

138"La loi fondamentale de 1815, amalgame des vieilles idées belges et hollandaises, et des nouvelles idées françaises, ne méritait peut-être pas le dédain extrême avec lequel la traitèrent nos constituans de 1831. Ce ne fut point tant cette charte qui engendra les griefs, que le mauvais esprit qui l'interprétait". De Gerlache (1859), vol. 2, p. XXIII. Louis de Potter started his opening speech for the National Congress by calling to mind the despotic way in which the Fundamental Law had been "forced by Holland" upon the Belgians. However, he conceded that its failure to secure liberty in Belgium was not so much due to its inherent character as to the fact of its incomplete execution. Huyttens (1844–1845), vol. 1, p. 100.

139Gilissen (1967, p. 60).

Fundamental Law had not succeeded in creating the immutable legal and political order of which it was supposed to be the guardian.

#### 2.4 Constituent Power

The new Constitution was debated and adopted in a relatively short span of time. After being accepted on 7 February 1831, it was solemnly promulgated on 11 February. The completion of the Constitution raised questions about the mandate of the Congress, and about the question of whether or not it should retain its constituent power. There was a general desire that the Constitution should enter into force and become the single legal norm for the new country. However, the political situation was not yet settled: a candidate for the throne still needed to be found, and the international situation remained unclear. Some members argued that now that the constituent work was done, the Congress no longer had a reason to exist. However, most objected to this view and insisted that order should return before elections for a regular Parliament could be called. In the meantime the Congress would continue to legislate.140

The provisional state of affairs was hard to reconcile with the desire for an immutable basic rule. It had originally been decided that the Constitution would come into force on the eleventh day after its proclamation, just like ordinary decrees.141 At several points in time, questions arose over the constituent mandate of the Congress. For as long as it retained its constituent power, the Constitution was susceptible to change. Van Meenen therefore proposed to immediately promulgate the Constitution, but to make it obligatory only from the moment when the Congress proclaimed its own dissolution. He rejected the idea, favored by some, that only the monarch's acceptance of the Constitution could render it binding. Although he conceded that the Constitution established a contract between the monarch and that Nation, he denied that the former should be allowed to have any influence on its content. His accession to the throne depended on his prior acceptance of the Constitution in all its points:

It has been suggested that the Constitution will only become definite upon its acceptance by the head of state. It is true that a contract is being established between him and the Nation, but the Constitution is not the subject matter of that contract; it is the acceptance of the mandate conferred to him by the Nation. The mandator in this case is the collective being that is the constituted Nation. The [King's] acceptance cannot call into question parts of the contract. Otherwise, every employee, when entering into function, could simply refuse to accept the laws he was called upon to execute unless modifications were made.142

140Huyttens (1844–1845), vol. 2, p. 501, 11/02/1831.

141Huyttens (1844–1845), vol. 1, 27/11/1830.

142"On a dit qu'elle [la Constitution] ne serait arrêtée définitivement que par l'acceptation du chef de l'État. Il est vrai qu'il se forme un contrat entre lui et la nation, mais la constitution ne forme pas la matière de ce contrat, c'est l'acceptation du mandat que lui confère la nation. Le mandant est ici

Destouvelles made a similar comparison in order to stress the monarch's subordination to the Constitution, and to insist that he had no other choice than to accept its terms: "a Constitution is only the specification of that acceptance". 143 The Congress confirmed this reasoning by deciding for the Constitution's immediate promulgation, but making it obligatory only ten days after the dissolution of the Congress. There could be no doubt that the future monarch derived his powers exclusively from the Constitution as a prior legal norm, and not from any extra-constitutional source of sovereignty (as in the case of William I's 'preliminary sovereignty').

The decision entailed a new debate on the question of whether or not proclaiming the Constitution meant that the Congress would abandon its constituent powers. Van Meenen maintained that the Congress should not be allowed to make any further changes to the Constitution after its proclamation, except for filling the gaps it inevitably contained. He was supported by, among others, Lebeau, who said that this was the best way to prevent external powers (namely the London Conference and/or the future monarch), from pressuring the Congress into adapting the Constitution to its wishes. The republican members Van Snick and De Robaulx objected to this measure, maintaining that a Congress vested with constituent powers would always be able to retract previous decisions, including those pertaining to the text of the constitution. The reason for their protest was clear enough. Since the Constitution specified that Belgium was a "representative, constitutional monarchy", a binding proclamation would stand in the way of the introduction of the republican form of government. Anticipating the Duc de Nemours' refusal of the Belgian Crown, De Robaulx brought forward a bill in favor of the immediate proclamation of the republic. He pointed out that the Congress was not a normal legislative assembly but a sovereign constituent assembly. Since it was omnipotent, its powers could not be bound even by its own decisions:

If I were to make a proposal contrary to a constitutional decree in a legislative assembly, I could imagine that one moves to the previous question; but in a constituent assembly, this is inadmissible, since we are sovereign judges, and have the power to reform ourselves.144

The proposal was not taken into consideration.

The Duc de Nemours's refusal, which De Robaulx had predicted, meant that the preconceived timing could not be followed. The search for a candidate for the

un être collectif de la nation constituée. L'acceptation ne peut mettre en question toutes les parties du contrat. S'il en était autrement, chaque employé n'aurait qu'à dire, en entrant en fonctions, qu'il n'accepte que sauf des modifications à faire aux lois qu'il est appelé à exécuter". Huyttens (1844– 1845), vol. 2, p. 492, 08/02/1831.

143"une constitution n'est que le cahier des charges de cette acceptation". Huyttens (1844–1845), vol. 2, p. 492, 08/02/1831.

144"Si, dans une assemblée législative, je faisais une proposition contraire à un décret constitutionnel, je concevrais que l'on pût invoquer la question préalable; mais dans une assemblée constituante, elle est inadmissible parce que nous sommes juges souverains, et en possession du pouvoir de nous réformer nous-mêmes". Huyttens (1844–1845), vol. 2, p. 512, 14/02/1831.

throne needed to be reopened, and the Congress would continue to convene. However, the Congressmen wished more than anything to leave the provisional order behind and put the Constitution into force. The credibility of the new state depended on it, both domestically and towards its neighbors. Van de Weyer stated: "it will signal the coming into force of our institutions. It will signal the organization of a regulated and truly constitutional power". 145

On the proposal of Lebeau, and in concordance with Art. 85 of the Constitution, it was decided that a Regent should be appointed.146 Since the Constitution would enter into force from the moment the Regent took the oath, this would put an end to the provisional state of affairs. The Congress nevertheless retained constituent power until a King was inaugurated, at which moment it would adjourn and elections for a regular Parliament would be called. The Congress would only be dissolved definitively when the new Parliament was installed.

#### 2.5 The Question of Constitutionality

The temporary state of affairs created another complication with regard to the precedence of Constitution, namely the issue of constitutionality. Even before the Constitution was promulgated, the question arose whether or not the constituent Congress should act in accordance with it. For a start, a debate emerged on the issue of whether or not the proposed regency needed to be organized along the lines of article 85 of the Constitution. The constituent Congress did not really match the prescriptions of the article, which had been drawn up with a normal legislative assembly in mind. Nothomb argued that the Congress was entirely free to instate a regency according to its own wishes:

The regency we wish to install does not figure in the fundamental law; the existence of the Congress vested with constituent powers makes our situation totally exceptional. In this regard, the Congress is not bound by any Constitution. We can neither abdicate the constituent power, nor delegate part of it. We are bound by our mandate.147

Since the Congress was an omnipotent constituent power, it acted outside of any Constitution, even the one it had itself created. Alexandre Gendebien objected that, since the Constitution provided for the possibility of a regency, the Congress was bound to abide by its prescriptions:

145"(…) ce sera le signal de la mise en pratique de nos institutions, ce sera le signal de l'organisation d'un pouvoir réglé et vraiment constitutionnel". Huyttens (1844–1845), vol. 2, p. 580, 23/02/1831.

146Huyttens (1844–1845), vol. 2, p. 580, 23/02/1831.

147"La régence que nous voulons instituer n'est pas dans la loi fondamentale; l'existence du congrès investi du pouvoir constituant rend notre situation tout à fait exceptionnelle; le congrès est à cet égard en dehors de toute constitution. Nous ne pouvons abdiquer le pouvoir constituant, ni le déléguer en partie. Nous sommes liés par notre mandat". Huyttens (1844–1845), vol. 2, p. 581, 23/02/1831.

Your Constitution is ready, now it must be put into action. You are short of a King though. Article 85 of the constitution prescribes that, when the throne is vacant, the administration of the realm is provided for by a regency.148

Not to do so would be to violate the Constitution even before it came into force:

To allow for the proposals which have been brought before you would be unconstitutional, and I do not think you wish to violate the fundamental pact even before it is put into action.149

The Congress finally followed Nothomb's reasoning. It instated a regency of its own design, with a Regent who did not possess all the constitutional powers of the head of state. Thus, the Congress's predominance over the executive power remained assured until the moment when a King would be found. The decision implied that the constituent power of the Congress was, by definition, unbounded.

The debates illustrate how the Constitution immediately acquired a position of prominence that was both legal and symbolic: it became the one standard against which the legality of all actions of the constituted powers could be measured and it even served as a rule for the constituting powers. As a consequence, the categories 'constitutional' versus 'unconstitutional' gained importance in political debate. The question of constitutionality was especially important in the period between the Constitution's promulgation in February and the inauguration of King Leopold in July 1831. The competencies of the Congress and the government respectively were debated in terms of their constitutionality. Accusing political opponents of making unconstitutional proposals became an efficient tactic for delegitimizing these proposals.

The maintenance of the new Constitution was jealously guarded by public opinion and the press as well. For example, on 11 March 1831, the Courrier de la Sambre published an article entitled "A violation of the Constitution". The article signaled that a few days earlier a decision of the government had been countersigned, not by the responsible minister, but by a high-placed functionary. This did not conform to the constitutional rules on ministerial responsibility:

The Regent be warned that the most profound respect for our new fundamental law and a strict observation of this law are required of his position, and the position of the country. Every transgression will be fatal, and must immediately be signaled and repressed.150

148"Votre constitution est prête, il faut la mettre en vigueur. Pour cela, il vous manque un roi. Aux termes de l'article 85 de la constitution, quand le trône est vacant, on pourvoit à l'administration du royaume par une régence". Huyttens (1844–1845), vol. 2, p. 567, 22/02/1831.

149"Admettre les propositions qui vous sont soumises serait inconstitutionnel, et je pense que vous ne voulez pas violer le pacte fondamental avant qu'il ne soit en vigueur". Huyttens (1844–1845), vol. 2, p. 567, 22/02/1831.

150"Que M. le Régent y prenne garde, le respect le plus profond pour notre nouvelle loi fondamentale, une observation stricte de cette loi, lui sont commandés par sa position et celle du pays; toute transgression serait fatale, et doit être instantanément signalée et réprimée". Courrier de la Sambre no. 291, 11/03/1831.

Equally instructive is the debate over the acceptance of the peace treaty with the Netherlands on 1 July 1831, which was an essential condition for the consolidation of Belgian independence. The competency of the ministers with regard to this question was discussed in terms of their constitutional mandate. Drawing on a religious vocabulary, De Robaulx warned against what he called "constitutional heresies":

I hurry to respond to the observation of M. Duval, which is a constitutional heresy. (…) This matter involves touching the Constitution. Be warned that the Constitution is an arch of alliance; touch it and you will be struck death. Yes, you will be struck death by public opinion.151

In the session of 12 April 1831, the question of whether legislative elections should be called was debated. It was argued that the Congress had reached the term of its mandate: since a Constitution had been drawn up and all the conditions for giving it its full execution were fulfilled, the constituent assembly should be dissolved.152 Isidore Fallon defended this argument, saying that the Congress's original mandate was limited to drawing up and promulgating a Constitution. After that it was obliged to resign. Otherwise, it committed an act of unconstitutionality and abuse of power:

In the present state of affairs, let us be careful. Because by reserving this competence for the Congress any longer (…), it may later be accused of unconstitutionality or usurpation of power.153

151"Je me hâte de répondre à l'observation de M. Duval, qui est une hérésie constitutionnelle. (…) C'est qu'il s'agit maintenant de toucher à la constitution. Prenez-y garde, la constitution, c'est une arche d'alliance; si vous y touchez, vous serez frappé de mort. Oui, vous serez frappé de mort par l'opinion". Huyttens (1844–1845), vol. 3, p. 369, 01/07/1831. This remark reflects the idea of the article 123 of the draft Constitution. Although it was finally not adopted, its spirit clearly remained: "The maintenance of the constitution and all the rights it consecrates are entrusted to the patriotism and the courage of the militia, the army, the magistrates and of all Belgians". Cf. Footnote 6.

152The Provisional Government decided to create the National Congress in its decree of 4 October 1830: "Un congrès national, où seront représentés tous les intérêts des provinces, sera convoqué. Il examinera le projet de constitution belge, le modifiera en ce qu'il jugera convenable, et le rendra, comme constitution définitive, exécutoire dans toute la Belgique". Bulletin des arrêtés et actes du Gouvernement Provisoire de la Belgique (1830), no. 4, p. 3. In the decree on the elections for the Congress of 10 October 1830, its task was defined as follows: "Considérant que le congrès appelé à décider des intérêts de la Belgique (…)". Bulletin des arrêtés et actes du Gouvernement Provisoire de la Belgique (1830), no. 7, p. 5.

153"Dans un pareil état de choses, prenons garde, en réservant plus longtemps au congrès cet acte important à la consolidation de notre indépendance et à l'affermissement de nos institutions, qu'on puisse un jour l'attaquer d'inconstitutionnalité ou d'usurpation de pouvoir". Huyttens (1844– 1845), vol. 3, p. 87, 12/04/1831.

Fallon further insisted that the Regent should be able to exercise his functions in the way provided for by the Constitution, instead of being subjected to the will of the omnipotent Congress: "He must finally be able to govern by virtue of the Constitution and not by the will of the Congress alone". 154

Nothomb protested that dissolving the Congress at that point in time would be the exact opposite of completing the mission with which it had been entrusted by the Nation. The great task of the Congress was to safeguard the gains of the Belgian Revolution and to consolidate them by establishing a stable state upon their base:

Our fellow citizens have invested us with complete social powers; they have consigned constituent power to us, they have charged us with the foundation of Belgian nationality; in short, they have entrusted the entire September Revolution to us.155

Given the pressing military, political and economic needs, these circumstances could not be said to have been attained: "Is Belgium's fate fixed because we have added one more Constitution to the long list of constitutions which the XIXth century has produced?". 156

Unless the necessary conditions for the survival of the Constitution were fulfilled, all the Congress's efforts would have been in vain.

On 20 July 1831, one day before the inauguration of the King, the different modalities for the dissolution of the Congress were discussed one last time. Fallon proposed to definitely dissolve the Congress directly after the King's inaugural oath. Other members argued that the King should not be left in charge without a legislative assembly. Therefore they proposed to let Congress retain the legislative power until the election of the first regular Parliament, but to adjourn it in the meantime. Its constituent powers on the other hand would cease after the inaugural oath. Devaux and Nothomb proposed the latter option, but added that the Congress could only be convened on the King's initiative.157 Fallon objected that the King was exclusively bound by his oath on the Constitution, and that therefore the Congress was obliged to surrender its powers:

154"Il faut enfin qu'il puisse gouverner en vertu de la constitution, et non par la volonté seule du congrès". Huyttens (1844–1845), vol. 3, p. 88, 12/04/1831.

155"Nos concitoyens nous ont investis de la plénitude des pouvoirs sociaux; ils nous ont revêtus de la puissance constituante, ils nous ont dit de fonder la nationalité de la Belgique; ils nous ont, en un mot, confié la révolution tout entière de septembre". Huyttens (1844–1845), vol. 3, p. 87, 12/04/1831.

156"Le sort de la Belgique est-il fixé parce que nous avons ajouté une constitution à la longue liste des constitutions qu'a engendrées le XIXe siècle?". Huyttens (1844–1845), vol. 3, p. 87, 12/04/1831.

157"Le congrès national s'ajournera immédiatement après la prestation de serment du roi; il sera dissous de plein droit le jour de la réunion des chambres. Jusqu'à l'époque de cette dissolution, le roi seul aura le droit de convoquer le congrès, qui ne pourra plus exercer désormais que la partie du pouvoir législatif que la constitution attribue aux chambres". Huyttens (1844–1845), vol. 3, p. 612, 20/07/1831.

The only condition imposed on the King is the oath on the Constitution. Neither our constituent power nor our legislative power can subsist. The power of the Congress is a constitutional power.158

Beyts, in favor of dissolution, argued that it was unconstitutional to let a single Chamber exercise the legislative power. In the absence of an elected Parliament, a constitutional legislative power could not exist: "The King has no sanction in the presence of a single Chamber. He has sworn loyalty to the Constitution; let us also be loyal and leave". 159 Forgeur likewise maintained that Nothomb and Devaux's proposal, which was finally approved by the assembly, was unconstitutional.

#### 3 Precedence in the Belgian Constitution

We have seen how the idea of precedence in the Belgian Constitution was informed by the political opposition against the Dutch King in the years preceding the Belgian Revolution. The Belgian opposition called upon the Fundamental Law in an effort to legitimize its resistance to royal authoritarianism. When this tactic failed, it established a new legal order with a new Constitution at its base. The next question then, is how this precedence was laid out in the Constitution itself. The Belgian Constitution is exceptional in that it does not have a preamble, which would be the most logical place for statements on the status of the constitutional text in relation to ordinary law.160 Instead of being explicitly proclaimed, the precedence of the Constitution is expressed by several articles within the

158"La seule condition imposée au roi, c'est le serment à la constitution: notre pouvoir constituant ni législatif ne peut subsister. Le pouvoir du congrès est un pouvoir constitutionnel". Huyttens (1844–1845), vol. 3, p. 611, 20/07/1831.

159"Le roi n'a pas de sanction avec une chambre unique. Il jure fidélité à la constitution; soyons-y également fidèles et allons-nous-en". Huyttens (1844–1845), vol. 3, p. 611, 20/07/1831.

160In the session of 18 November 1830, Boucqueau de Villeraie proposed to draw up a manifesto that would serve as a preamble to the Constitution. The manifesto was to contain a legitimation of the Belgian Revolution, as well as the decrees on Belgian independence and the deposition of William I. The proposal was adopted and a commission, composed of Trentesaux, Théophile Fallon, Charles-Hippolyte Vilain XIIII, Forgeur, Van Crombrugghe, Lecocq, De Ryckere, Count Vilain XIIII, De Gerlache and Boucqueau de Villerain was charged with the task. The commission never convened however. In the session of 13 April, the National Congress renewed its intention to draw up a manifesto containing "the grievances of the Belgian people". The commission was reshuffled but again failed to produce results. In the meantime, during the session of 24 February 1831, Devaux proposed to include the decrees of 18 and 24 November (on national independence and the exclusion of the Nassau dynasty from succession to the Belgian throne) in the Constitution. On Beyts's proposal, and with a view to preventing their later modification by constitutional revision, the decrees were not included into the Constitution however, but were granted constitutional status: "nous les rendons irrévocables; ils ne feront pas partie de la constitution, mais ils seront comme la base sur laquelle elle repose". The decision was published in the Bulletin Officiel on 24 February. A preamble was never drawn up. Bulletin Officiel des décrets du Congrès national de la Belgique et des arrêtés du pouvoir exécutif (1830–1831), vol. 3, no. XVI, p. 187, decree of

constitutional text. Their tendency and formulation often bespeaks the influence of British constitutional law, as reformulated by Constant. We will list these articles and explain them by looking at the constituent debates and at constitutional manuals.

#### 3.1 Differentiation from Normal Legislation

• The Constitution cannot be suspended.

Art. 130: The Constitution cannot be wholly or partially suspended. 161

This article was not included in the draft of the Constitutional Commission. It was added during the Congress debate of 5 February 1831 upon the suggestion of Van Snick. Van Snick first proposed the following article, borrowed from Benjamin Constant:

The constitutional powers only exist by virtue of the Constitution. They cannot, in whichever case or under whichever pretext, suspend its action.162

He supported his suggestion by referring to the political and institutional instability of France, where every regime violated and suspended the constitutions of its predecessors, under the motto Salus populi suprema lex esto. Instead, Van Snick argued that the wellbeing of the people was "always attached to the inflexible execution of the laws, especially of the fundamental law". 163 His proposal was meant precisely "to prevent such infractions, such suspensions and coups". 164

The proposal was approved, but a discussion developed over its formulation. De Robaulx considered prohibitive measures illusory, since constitutions could ipse facto only be violated by illegal means.165 The article was thereupon reformulated so as to better express its intention to prevent the constituted powers from

24 February 1831; Huyttens (1844–1845), vol. 1, pp. 180–182, 18/11/1830; p. 261 (23 November 1830); p. 388 (11 December 1830) and vol. 2, p. 586, 24/02/1831; pp. 94–97 (13 April 1831).

161"La constitution ne peut être suspendue en tout ni en partie". See: Ergec (1987), Errera (1918, pp. 17–19), Huberlant (1982, pp. 337–338) and Van Drooghenbroeck (2006).

162"Les pouvoirs constitutionnels n'existant que par la constitution, ils ne peuvent dans aucun cas, ni sous aucun prétexte, en suspendre l'action". Huyttens (1844–1845), vol. 2, p. 464, 05/02/1831. 163"toujours attaché à l'inflexible exécution des lois, et surtout de la loi fondamentale".

164"de prévenir ces infractions, ces suspensions et ces coups d'État".

165"Une constitution ne peut être violée que par un coup d'État ou une révolution. Toute disposition prohibitive me paraît illusoire" (A constitution can only be violated by a coup or by a revolution. Prohibitive measures seem illusory to me). Huyttens (1844–1845), vol. 2, p. 464, 05/02/1831.

suspending the Constitution. Lebeau agreed, arguing that even the possibility of a violation needed to be precluded.166

• Constitutional revision is impossible during a regency.

Art. 84: No constitutional revision is admitted during a regency. 167

The article was based on Art. 233 of the Fundamental Law.168 It was passed without discussion, with the clear intention of preventing constitutional change in times of crisis.169

• Special revision procedure.

Art. 131: The legislative power has the right to declare that there are reasons to revise such constitutional provision as it determines.

Following such a declaration, the two Houses are automatically dissolved. Two new Houses are then convened, in accordance with Article 71.

These Houses make decisions, in common agreement with the King, on the points submitted for revision.