journal Debates Conference

Frederik Dhondt*

Legal arguments in the debate on recognition of Italian independence in Belgian parliament (November 1861)

‘J’ai fait aussi quelques études de droit comme tout le monde, je suis docteur en droit comme tout le monde, je veux dire que je suis un médiocre docteur en droit ; mais le droit des gens […] que nous enseigne-t-il? […] Nous prêtons, dit-on, la main à la violation des traités, mais combien de traités subsistent encore quant au fond dans les termes, où ils ont été conclus? N’allons pas plus loin que le traité de Vienne.’

Charles Rogier, 21 November 18612


1The intertwining histories of constitutional and international law are at the heart of this special issue of Forum Historiae Iuris, stemming from the conference Entangled National and International Legal Orders in the Long 19th Century. Italian unification stands out as a case of ‘patent disregard’ for the prevailing international law, or an episode wherein legal and political change had to be accommodated within the prevailing use of legal vocabulary to structure international order.3 The legitimacy of Piemonte-Sardinia’s annexation of territory in Italy, often by force, and mainly with support from the French Second Empire, leaves traces into present-day Italian national conscience.4 Proponents of Italian unification heralded ‘new legal standards’ for the time, namely the nationality principle and the principle of non-intervention, whereas their opponents defended the system of the Congress of Vienna, based on armed intervention against rebellion, legitimism and balance of power-politics.5

2It is a commonplace to state that constitutional reform on the 19th century European continent was a consequence of the political ghosts awakened by the French revolution. Political liberalism desired individual rights and freedoms, coupled with accountability of the Executive Power, in the form of ministerial responsibility. Nationalism, on the other hand, drew the logical consequences of the principle of national sovereignty, proclaimed by the French Assemblée Nationale Constituante6. The Revolutionary regimes entrenched the idea that all (male) human beings possessed inalienable, fundamental political rights. However, this did not lead to the creation of a universal republic, as the resistance against the French in Germany, Tyrol or Spain demonstrated. Furthermore, the borders drawn at the Congress of Vienna (1814-1815)7 confirmed the partition of Germany and Italy in numerous sovereign entities. This ignored the German nationalist movement, born from the struggle against Napoleon, as well as the Italian experience of scale enlargement under that very same Napoleon.8

3For the case of Belgium, it is very clear that the members of the Constituent Assembly (the National Congress, 10 November 1830-11 February 1831) blamed aristocratic diplomats for blocking their sincere desire to create a fully independent, sovereign nation. This anger had two causes. First, diplomacy was blamed for the creation of the United Kingdom of the Netherlands in 1814-1815. The monarchical or ‘granted’ constitutions accompanying the Congress decisions based on the legitimacy principle, were incompatible with parliamentary sovereignty.9 Second, European cabinets had imposed the burden of permanent neutrality. The term ‘Holy Alliance’ (26 September 1815) of Czar Alexander I, Emperor Francis I and King Frederick William III was still used in the debates.10 Diplomats were accused of ‘diplomatising’ revolts, bringing them to a halt, and starting scandalous negotiations, setting up traps, making betrayal their daily business, exercising illegitimate pressure, indulging in an insatiable greed for personal power.11 This bad reputation of diplomats, who often constituted a link of continuity with the Old Regime12, still influences our present-day judgment of the treatises of authors as Georg Friedrich von Martens (1756-1821) or Johann Ludwig Klüber (1762-1837).13

4The Belgian Constitution of February 183114 was inspired by the British conception of parliamentary sovereignty (1689), the French attempt at organising constitutional monarchy in 1791, the French granted constitution of 1814, and borrowed surprisingly many articles from its predecessor, the Constitution of the United Kingdom of the Netherlands (1815).15 Article 25 (current article 33), expressing that ‘all powers are derived from the Nation’ was a core article. The moderate Catholic and Liberal revolutionaries aspired to a ‘republican monarchy’, as the July Revolution of 1830 had just installed in France.16 Ministerial responsibility before the elected Chambers gave the nation a possibility to hold the Executive branch accountable. Judicial review of executive decisions by civil courts and tribunals guaranteed the supremacy of the Law. For foreign affairs, the monarch was compelled to obtain parliamentary consent for the ratification of treaties creating obligations for Belgian citizens and for treaties of commerce.17 In practice, the country’s first monarch, Leopold I of Saxe-Coburg-Gotha (1790-1865), interpreted his competences broadly.18 As a relative of Queen Victoria and many other European rulers, the ‘King of Europe’ dominated daily diplomatic exchanges, with a prudent conservatory attitude, aimed at preserving the overall balance in Europe.19

5The attitude of international law20 vis-à-vis internal turbulences is the subject of two classical themes of the law of nations: recognition21 and intervention.22 However, the rise of national sovereignty throughout the 19th century led to the affirmation that the nationality principle had become an international standard. International lawyers resorted to naturalist conceptions, or to Savigny’s Volksgeist as applied to the international community, to explain this legal change.23 In his elaborate analysis of Belgian permanent neutrality and the Berlin Conference (1885), Belgian scholar Ernest Nys (1850-1921) stated that this had become the rule, rather than the exception.24 Nys attempted to maximally reduce the congenital restrictions imposed on Belgium by the Great Powers, stating that national sovereignty had become the rule, and all other externally contracted engagements mere exceptions, which -of course- ought to be interpreted narrowly.25

6A difference in internal constitutional arrangements is in principle a mere internal matter, but the gradual rise of national sovereignty created evident conflicts between international norms and decisions, on the one hand, and newly-created states, on the other hand. The consecutive wars between Piemonte-Sardinia and Austria (1848, 1859, 1866) were as many revisions by force of the Vienna Peace Treaties. In 1860, Terenzio Mamiani della Rovere (1799-1885) published an English translation of his Italian work D’un nuovo diritto europeo under the title Rights of Nations, or the New Law of European States Applied to the Affairs of Italy.26 Translator Roger Acton dedicated this volume to Lord Russell (1792-1878), thanking him for his diplomatic dispatch of 16 August 1859, urging the courts of Paris and Vienna not to intervene to ‘put down the will of the people in Central Italy.’27 Acton cites a comment from the Daily News dated 10 January 1860, highlighting a similar criticism against diplomats and the classical so-called positivist school of international law:

7‘Count Mamiani’s book would render useful service to the progress of that sublime and beneficent department of study, which defines the obligations of political equity, beyond the conventional rules of civil institution. We mean that true and lofty science of Public Law, which is not restricted to the etiquette of ambassadors, or other such incidental arrangements of the state of peace or the state of war – but which aspires to render peace a perpetual blessing and war an antiquated horror, by appealing to the common experience and intelligence of mankind to bow before the supreme authority of Justice. Amongst the nations, indeed, dwelling side by side in legal equality as they do, there is no legislature and there are no tribunals. Their law [sic], apart from particular stipulations, consists but of a body of approved notions of the time, or derived from former times; a fluctuating mass of doctrines, precepts, and usages, which can never be determined by judicial interpretation, but which are broadly indicated by the general concurrence of opinion and example.’28

8The Italian Risorgimento found support with Belgian Liberals and was resisted and loathed by Belgian ultramontane Catholics. This is completely concurrent with the ideological underpinnings of the latter movement. Papal condemnation of ‘liberates effrenatae’ with Mirari Vos in 1832 derived from the point of view that national constitutions could not trump the doctrine of the church.29 Recognising the authority of the Pope above secular states (ultra-montes) went hand in hand with attempts to introduce a neo-corporatist political system, whereby the irrational and irresponsible individual right to choose one’s representatives would be replaced by a harmonious cooperation between the fixed social forces in society. This ideological sympathy with the Pope and the very Catholic Austrian Emperor caused Belgian volunteers to enlist for the Zouaves.30 Catholic investors deposited their funds with André Langrand-Dumonceau (1826-1900), a financial adventurer. His operations in exclusively Catholic recipient states would lead to a high-profile scandalous bankruptcy.31 Conversely, Belgian arms were produced and sold to the other camp.32 Furthermore, the transnational connections between the aspiring Italian and Belgian internal political struggles were evident.33 Liberal politicians in Belgium fought for the same issues as their counterparts in Italy. This corresponds to numerous personal links between legal scholars, such as François Laurent (1810-1887) and Pasquale Stanislao Mancini (1817-1888) or Augusto Pierantoni (1840-1911).34

9This long introduction sets the stage for a remarkably lively (‘violent’)35 debate in the Belgian Chamber of Representatives. Insults and emotional tremolo’s were not unusual. Under the Belgian constitution, members of Parliament enjoyed a full civil and criminal immunity for words uttered in their meetings.36 Yet, a reply by Charles Rogier to a question asked by a Catholic MP would eventually trigger a civil lawsuit against a newspaper, which Rogier’s lawyers triumphantly won.37 The liberal government was headed by Walthère Frère-Orban (a personal friend of Cavour)38 and Charles Rogier. Both were in favour of recognising Victor Emmanuel II of Piemonte-Sardinia (1820-1878)’s assumed title of ‘King of Italy.’39 The consensus in international legal scholarship considers that the Kingdom of Piedmont-Sardinia and the Kingdom of Italy stand in a line of continuity, which is still unbroken up to the present day, irrespective of the fascist-totalitarian and republican transition.40 The turn of the year 1861 is regularly taken as the starting point of official relations between Belgium and Italy. We will examine the terms of the debate, whereby the practical political use of arguments drawn from international law and constitutional history, for their ‘evocative and ideological potential’,41 will demonstrate how the dissemination of the law of nations with individual members of Parliament made it a credible vector of legitimacy. First (A), the governmental position is briefly discussed, followed by that of the Catholic opposition (B). We will return to the significance of the debate for Belgian permanent neutrality in the conclusion of the present paper.

A. The Belgian government’s position

‘La neutralité, c’est la stipulation la plus garantissante de notre perpétuité. Les puissances ont stipulé dans leur intérêt ; mais c’est le plus grand service qu’elles aient pu nous rendre. Conservons donc avec soin ce bienfait ; n’en sortons à aucun prix ; aussi dois-je déclarer que je regrette et blâme l’acte de reconnaissance qui a été fait.’

Barthélémy de Theux, 23 November 186142

11The legal framework of the debate is determined by the status of imposed permanent neutrality. The Belgian government was under permanent outside scrutiny by the Great Powers who had agreed to guarantee the country’s independence and territorial integrity, on the countervailing condition that it would observe a strict neutrality against all other states. The recognition of a unified Italy under Victor Emmanuel II of Piemonte-Sardinia was evidently likely to frustrate Emperor Franz Joseph of Austria (1830-1916). In 1859, the latter had been compelled to give up Lombardy at the Treaty of Zurich.43 In practice, France and Britain had granted support to the Italian movement of independence.44 The conservative powers Prussia and Russia, the two other remaining guarantors, had kept aloof. In the case of Prussia, the weakening of Austria within the German Confederation was more important than the constitutional evolution of Italy.45 For Russia, the defeat in the Crimean War (1853-1856) had discouraged further mingling in Western European affairs.46 At the time of the debate, Victor Emmanuel II did not rule in Venice (which was only to be ceded at the end of the Austro-Prussian war of 1866)47 nor in Rome (where the Pope still enjoyed a relation of protection with Napoleon III).48

12The Catholic opposition published no less than 129 pages of parliamentary interventions, in order to bolster resistance against the policies pursued by the Liberals since 1857. From the start, the editors attack Rogier and Frère-Orban. Instead of clinging to the prudence inspired by Leopold I’s intervention before both Houses of Parliament on 10 November 1840 (‘neutralité sincère, loyale et forte’)49, the liberals had extorted an act from the King under pressure. This act was not only useless, but also harmful and eventually dreadful and disastrous to the country as a whole.50If even ‘la plus vulgaire prudence’ had been followed, the ministry ought to have abstained from a recognition of the Kingdom of Italy. By doing so, the government had given a free hand to a system designed to ‘leave the strong to oppress the weak, invoking a title that one can easily create when one is strong enough’. The extension of Sardinia-Piemonte all the way down south to the Kingdom of Naples was nothing more than a system of annexation.51

13The justification provided by the government boiled down to two points, according to the Catholic opposition. First, a neutral state was ‘condemned to recognise a fait accompli, or an ‘acte de possession’,52 of whatever nature it might be’. In a telegraphic dispatch to Carolus, Rogier justified this using Vattel and Georg Friedrich von Martens.53 A neutral state could not do anything else but recognise the outcome of a struggle between parties in another country. This is what Belgium had done for Spain and Portugal.54 Of course, this reasoning was and is fallacious, the Catholics claimed. The contradiction between declaratory and constitutive approaches to recognition is unsolvable.55 As Montague Bernard already highlighted in 1859, sovereignty is an internally absolute, but externally relational concept:

14‘The whole fabric of international law is built on two assumptions, or first principles – the assumption that States are severally sovereign or independent (the terms are here convertible) and the assumption that they are also members of a community united by a social tie […] Destroy them and you destroy the system; impair them and you impair the system.’56

15Second, the imperatives of an advantageous commercial treaty made it necessary to first recognise the new situation.57 Why would Belgium wait three more months or even three years, if not all Great Powers would presumably have recognised the Kingdom of Italy?58 The opposition lost the ensuing vote, by 47 votes against 62.59 The government’s doctrine of ‘effectiveness’ carried the day. Yet, at least twenty members of the Liberal group were said to have intimately condemned the path chosen by their leaders. The publication of Catholic interventions ought to prove that the government had been ‘morally beaten on this question’.60

16Belgium was not confronted with its first debate on recognition since 1830. The French Revolution of 1848 had already created a delicate situation. It was well known that Lamartine, in charge of foreign affairs in the first revolutionary government, initially aimed to overturn the results of the Congress of Vienna. He considered the latter reactionary episode in the history of European peoples. The Belgian government at the time, directed by the same Rogier and Frère-Orban, prudently accepted the new regime in France, well aware that this move would not be supported by Austria, Prussia and Russia.61 The medievist Kervyn de Lettenhove62 still had not digested the recognition of the ‘dictature de 1848, celle de Ledru-Rollin et de Louis Blanc63, and feared that the ideas of Mazzini might replace those of Cavour, on which Rogier and Frère-Orban doubtlessly based their decision. Premature recognition of Italy, without waiting for the Pope to be found ‘wandering and begging’, would violate the obligations of permanent neutrality. Thibaut called Garibaldi ‘un grand criminel’ and saw Mazzini as ‘chef de la révolution sociale en Europe’. Henri de Brouckère, who had been cabinet leader of a unionist government between 1855 and 1857, was presented as wiser than Rogier in his disapproval of the Liberals’ position.64

17The governmental position was defended using the commercial argument. On 3 November 1861, Charles Rogier wrote a letter to Carolus, envoy extraordinary and minister plenipotentiary for Leopold I at the Papal Court in Rome.65 At the time when France was negotiating a commercial convention with the court of Turin, while it was clear that talks were going on with London and the Prussian Zollverein, Belgium could not allow itself to refrain from such talks as well. The 1860s witnessed a boom in trade conventions concluded by Belgium with other states, in the slipstream of the Cobden-Chevalier agreements. The thriving Belgian industry was constantly in need of new export markets, and pressured the government for recognition.66 Furthermore, major infrastructure and public building works were announced in Italy. Belgian entrepreneurs could not be confronted with worse competitive conditions than their Dutch, French, British or Prussian counterparts!67 In other words, the Belgian government argued a commercial treaty was necessary in order to create a level-playing field for Belgian companies vis-à-vis their foreign competitors. Finally, private international law required recognition of Italy by Belgium to ensure that legal acts drafted in either country would have effect in transnational transactions.68

18In a second letter of the same date, directed at the Count of Montalto, Sardinian minister in Belgium,69 Rogier announced that a new Belgian envoy extraordinary70 would be sent to Victor Emmanuel II’s court, with letters of credence conformably to the title used by the Sardinian Parliament in the Palazzo Carignano on 17 March 1861 at the proclamation of the Kingdom of Italy.71 A third letter by Rogier was directed at Targioni, the King of Naples Francis II of Bourbons’ agent in Brussels.72 Rogier regretted that he was not able to officially notify his appointment as Minister of Foreign Affairs, since the decision had been taken to recognise Victor Emmanuel II as King of Italy (including Naples). Official relations were henceforth excluded.73

19The whole issue had not been dealt with very smoothly. The Liberal government had been divided, mainly due to the obligations of the neutrality regime. Rogier had taken over the Ministry of Foreign Affairs after his predecessor, baron de Vrière, resigned out of protest against the impending recognition of Victor Emmanuel II’s title.74

B. Opposition arguments

1. ‘Notre seule sauvegarde dans la famille des peuples!’ : Belgian neutrality75

20The opposition attacked Rogier. The first orator was Alphonse Nothomb, MP from the rural province of Luxemburg and former Minister of Justice.76 Nothomb directed his criticism at the system of ‘annexion’ practiced in Italy. The ‘rupture’ with the Kingdom of Naples would equate a violation of the duties inherent to Belgian neutrality and the law of nations more generally. First, neutrality, as created by article VII of the Treaty of 19 April 1839, was for Nothomb a ‘condition d’existence européenne’.77 This alone should have sufficed for the Belgian government. In no way could the country choose to help a foreign state conducting a war.78 Nothomb, a lawyer at the local bar in Arlon, appealed to the ‘conscience de tous les hommes qui pratiques les choses du droit’. In other words, the conscience of ordinary law practitioners (traditionally well represented in Parliament) ought to be shocked by the Government’s lack of prudence.79

21Nothomb cited definitions of neutrality, ranging from ‘staying in the same attitude’ towards sovereigns in a state of war, to ‘exact and perfect impartiality, demonstrated in fact by the neutral’s attitude towards belligerents’. Rogier would have openly taken part for one side against the other. By granting assistance to one the parties, the Liberals committed a ‘violation manifeste’ of their neutral condition. Rogier presented Italian unification, as proclaimed by Parliament in Turin in Mach 1861, as a fait accompli. But, Nothomb opined, where was the peace treaty between the Holy See and Piemonte, or the Peace Treaty between Naples and Piemonte? Belgium gives ‘gain de cause’ to Piemonte, whereas Garibaldi’s men or Victor Emmanuel’s troops had only occupied territory, and committed ‘ursurpations’ against other sovereigns.80

22Resuscitating an 1840 quote by the liberal Founding Father Paul Devaux, Nothomb recalled that Belgian neutrality had to be a synonym for impartiality against the British, the French and the Germans alike. Why not add ‘Piemontese’ to the enumeration? Nothomb recalled that the liberal MP Auguste Orts81 had taken this stance in Parliament, when he condemned Belgian volunteers for the Papal forces. Orts insisted they should lose their nationality, since:

23‘We ought to be more scrupulous than anybody else, since this is a condition of our independent existence in Europe […]. We have to prove that we desire to remain neutral, since we want to remain independent […] Besides the beautiful right we call independence, we ought to accept the countervailing obligations, namely the obligation not do to others what one would like to avoid others to do in one’s proper home.’82

24Of course, Nothomb defended the right of every individual to ‘serve abroad’, since ‘treaties only bind states’. The liberal government tried to deprive men of their ‘natural liberty’, although neutrality was only a ‘collective’ concept, which could only apply to the State as a whole. Even more, Nothomb argued, Rogier was so hypocritical in his reasoning that he would allow the Belgian State what would be forbidden for the individual citizen: choosing sides for a belligerent in an international conflict not yet settled by a treaty.83

25A major Catholic argument, recurring with several MPs, is that of the possible consequences of Rogier’s letter. What if Belgium would argue that another state violated its duties as a neutral power, when this case would offer a precedent where it had committed such a violation itself?84 How would Belgium react, if the Italian irredentist movement annexed Ticino, Venice, Dalmatia or even Corsica? What if Poland would rise and revolt against Russia? What if Ireland would proclaim some far relative of an ‘ancienne race’ as its ruler? Why recognize a ‘state of fact’ in Italy, and not elsewhere? De Decker added that the massive investments required by the government to buttress the fortifications in Antwerp were a clear indication that the country was ‘most threatened by annexation of all countries in Europe’.85 Why spend 50 million to transform Antwerp into ‘un Gibraltar’, or 15 million to buy Prussians canons?86 Wasn’t the government taking an enormous risk by encouraging Italian irredentism? What if the future annexation of Venice would arouse similar ideas in France? Pleas stating that ‘Italy without Venice would be as France without Belgium’ were already in print.87 Louis Julliot (1795-1881), Catholic MP from Limburg (a province bordering the Netherlands) warned against the recognition of potential claims of the new King of ‘Italy’ on Venice and Rome. Didn’t the European Great Powers link Belgium’s recognition to its abandoning of the claim on Maastricht?88

26Furthermore, why would Belgium recognise so quickly? Three out of five guarantors of Belgian independence (Russia, Prussia and Austria) had not yet reacted. De Decker argued that Belgium should orient its foreign policy on a similar footing as… Switzerland!89 The former cabinet leader argued that the Swiss Confederation had only recognised Italy with reservations, but Rogier and Frère-Orban were able to contradict this quickly. Viscount Vilain XIIII,90 by contrast, claimed to have heard from Prussian and Russian voyagers that they did not suffer any inconveniencies from their governments’ wise decision to delay a full recognition. Rogier’s argument of absolute necessity and urgency was thus a mere pretext.91 Vilain XIII’s words were not without weight. The viscount had personally represented Leopold I during the 1830s, and had had to negotiate with the various Italian courts to ensure Leopold I’s recognition as King of Belgium. Furthermore, Vilain XIIII thought any recognition of the ‘Kingdom’ of Italy was premature:

27‘non seulement parce qu’il n’est pas fait, mais parce qu’il est en train de se défaire, et j’espère qu’il ne se fera pas.’

28Vilain hoped that the House of Savoy would simply add the title of ‘King of Italy’ to a long list including ‘King of Cyprus’ and ‘King of Jerusalem’.92 If Victor Emmanuel II would keep the title of ‘Duke of Savoy’, while he had ceded the Duchy to France, the title ‘King of Italy’ might well enter into the same category, without any harm. Didn’t the English royal family revindicate the Kingdom of France up to 1815, more than three centuries after the Hundred Years’ War had ended?93

29Why, finally, would Belgium help to eliminate small nationalities? The recognitions of independent Greece and Belgium respected the forms agreed at the Congress of Vienna. Belgium had to wait for more than a year after Leopold I’s inauguration for all ‘puissances secondaires’ in Europe to recognise his accession. On 23 November, Barthélémy Dumortier from Tournai,94 amplified his colleagues’ reasoning, by stating that Italian unification posed an existential threat to Belgium, because it consisted of

30‘la négation de la base essentielle de notre existence politique […] du respect dû aux petites nationalités.’95

31Dumortier portrayed the equal sovereignty of independent states as the essential contribution of international law to the world. Politics knows either force, or law. Since ‘les petites nationalités’ are deprived of the former, they can only have a sole source of prestige or support: law. The creation of the Kingdom of Italy was nothing but the ‘suppression’ of the balance of power (‘équilibre européen’), which was the best guarantee for Belgium’s political existence. The formation of the Kingdom of Italy shows nothing but violations of the rights of small nationalities.96 Moreover, France had previously announced that a recognition of the ‘fait accompli’ would in no way be guaranteed to Piemonte-Sardinia.97 Why would Belgium then deviate from the principle of non-intervention?98 For priest de Haerne, the Lombards, Venetians, Tuscans (Etrurians), Romans, Calabresi and Siculi were separate ‘races’, just as the ‘Belgian race’.99

32Rogier’s decision to interrupt official relations with the Kingdom of the Two Sicilies was a mere ‘patente frauduleuse’ to cover the Liberal’s true merchandise. For Dumortier, the government’s declarations constituted an abuse of law (‘en fraude de votre droit’).100 Barthélémy de Theux, former and future Catholic Cabinet Leader, argued that recognition was only possible, conformable to prescription in civil law, when a ‘possession complète’ of ‘more or less long duration’, was ‘à peine contestable’.101 De Theux continued by pointing to the existing commercial treaty between Piemonte-Sardinia and Belgium.102 This treaty contained a Most Favoured Nation-clause. If France concluded a new treaty with Piemonte-Sardinia, Belgium could unilaterally grant the same advantages to Piemonte-Sardinia as French subjects currently enjoyed in Piemonte-Sardinia. As a consequence, according to de Theux, Belgian merchants and industrialists would enjoy the same rights in Italy as their French competitors.103

2. ‘Un regime imposé’ : the extension of Piemonte-Sardinia and popular sovereignty

33‘ah, si la révolution s’était faite à Naples par les Napolitains, si le peuple de Naples avait renversé le gouvernement de François II’

Thibaut, 28 November 1861104

34De Decker argued as first speaker that the ‘right of peoples to command their destiny themselves’ was not being questioned by any Catholic orator. However, where was the Italian national will? Did the Belgian government contribute to freezing a situation that in essence, was merely temporary? The Italian unification was not ‘réellement voulu[e]’ by the population, and nothing but a ‘régime momentané imposé par l’étranger, sous le coup de la terreur’.105

35De Decker borrowed from the French liberal thinker Benjamin Constant106. Only the most oppressive governments demand that their citizens fall over themselves to bring their ordained enthusiastic adherence. Abstention would bring the gravest dangers: ‘tables de proscription’ would list citizens destined for banishment or death.107 Belgium ought to lead by example, demonstrating by the spontaneous happiness of its citizens that truly representative and constitutional institutions are to be preferred over civil war, martial law and shootings.108 Dumortier added that no less than twenty-five thousand people were told to have been incarcerated by the Piemontese, without any judgment or hope of a fair trial. Why would the Liberals cry out at the violations of the Maronites’ rights by the Druses,109 or those of the Polish by the Russians, and remain silent at the exactions committed by Pinelli?110

36Again, following Dedecker, the Liberal government thought its recognition of Italy would encourage the rise of constitutional government, but it merely sanctioned revolts. It would have been better to respect ‘les petites nationalités’, the sole and true warranty for peace in Europe. De Decker concluded that even ‘great interests’ of political liberalism were alien to the Italian question, as he thought transpired from Guizot, Thiers, de Broglie, Lamartine and so many other French authors. In Belgium, only the Catholic party represented wise and prudent liberal political thought.111

37Vilain XIII equally tried to undermine Piemonte-Sardinia’s credibility. When count Walewski, Napoleon III’s minister for foreign affairs, had insisted on measures against the freedom of the press in Belgium, almost all powers abstained (including the conservative courts), while Britain supported Belgium. Piemonte, by contrast, tried not to alienate France, on which it relied for the realisation of its designs for Lombardy.112 Van Overloop remarked that Cavour went after journalists before criminal tribunals! This was, of course, impossible under the regime of the Belgian constitution of 1831, where the popular jury alone judged political and press crimes.113

38The conservative Catholic MP and former lawyer for the Ministry of Foreign Affairs, Eugène Van Overloop114, likened Belgian patriotic feelings to the supposed loyalty of Italians to the Pope, against ‘l’oppression étrangère’.115 During the debates, Charles Rogier explained Garibaldi’s success in the Kingdom of the Two Sicilies as a reaction to the reactionary government in Naples, and reassured that (his own) prudent administration had saved Belgium from revolution in 1848.116 Van Overloop replied that Rogier had omitted the ‘preparation of Garibaldi’s success by treason’, and hoped rural revolts against him would jettison the Piemontese ‘yoke.’117 Dumortier added that recognising the title ‘King of Italy’ would inevitably encourage Italian irredentism, and constituted an implicit encouragement to annex the Papal States.118 Likewise, for de Theux, no title of ‘King of Italy’ could be recognised until ‘all Italians recognised it’, with Rome as capital and Venice as a security.119 De Haerne feared that the Belgian government encouraged annexationism. He pleaded the case that 200 million Catholics all over the world had created a Catholic colony, and that a ‘pacte social’ underpinned the sovereignty of the Holy See.120 De Haerne’s disquiet was a logical consequence of the de facto annexation of parts of the Papal State (Emilia Romagna, Marche, Umbria) by Victor Emmanuel II, based on an extensive interpretation of the Peace Treaties of Villafranca and Zurich.121

39Dumortier told the tale of the Duchess of Parma, who accordingly had been on the run for her Parliament.122 Yet, the population implored her to return, as the ‘idol of the Nation’, and brought her back in triumph in her capital. Only ‘la corruption piémontaise’ could push her out, and achieve the annexation of Parma to Piemonte.123 Victor Emmanuel II had been so vicious as to make his ambassador, Buoncompagni, the chief of a conspiracy against the Grand Duke of Tuscany.124 Dumortier said he agreed with Lord Strafford that the ruler should have hung the diplomatic agent in front of the Palazzo Pitti!125

3. ‘Une guerre sans déclaration, par avidité, sans motif valable’ : general law ofnations

40The opposition sought legitimacy for her political point of view in the ‘cold-headed quest’ (froidement) of the applicable principles of the law of nations (‘droit des gens’).126 Thibaut mixed rhetorics and law, stating that since the principle of non-intervention was binding upon all nations, ‘tous les Etats sont neutres les uns à l’égard des autres’.127 Thibaut continued by putting forward a definition of voluntary neutrality:

41‘un droit et un devoir: droit de refuser de prendre parti entre les nations, des peuples qui sont en état d’hostilité ; devoir de s’abstenir de tout acte qui aurait le caractère de parti pris patent ou secret’.

42As a secondary power, regardless of the status of imposed neutrality, Belgium does not have the right, in any case, to recognise a state before the great powers, ‘les nations gardiennes et garantes du droit public européen’, had done. Belgium’s guarantors were entrusted with a specific mission to prevent ‘usurpations and violent annexations on behalf of the revolutionary principle of unity of race, origin and language’, and had to prevent ‘any state from violating public law to the detriment of another state.’128 Neutral states had the obligation to recognise any internal organisation of any state, and could not opt for either party when ‘les gouvernements grandissent ou s’élèvent par usurpation ou conquête’.129

43Thibaut’s insistence on a consensus between the Great Powers was of course illusory. Attempts by Austria to align Britain on its point of view had been in vain, since Russell publicly supported the right of populations to determine their own future.130 For Thibaut, it was clear that a neutral state ought to tie its recognition to two preconditions. First, it has to wait for recognition by the Great Powers. Second, a reparation of violations of the general law of nations allegedly committed by Victor Emmanuel II is warranted.131 This, Thibaut alleged, had been the line of Rogier’s liberal predecessor, baron de Vrière.132

44Nothomb argued violations of the law of nations had been so evident, that an exhaustive enumeration would not be required. Victor Emmanuel II had started a war without declaration, had intervened in a civil war between the King of Naples and his subjects.133 There was no just case for the war, since there was not a single grief between the King of Piemont-Sardinia and the King of Naples. Only personal aggrandizement was the reason for the turmoil.134 Dumortier accused Victor Emmanuel of invading Naples without any pretext, and of secretly sponsoring Garibaldi’s fleet and army.135 How could the King of Piemonte allow the revolutionary’s ships in the ports of Tuscany, and publicly declare he had nothing to do with them? During the fight over Gaeta, treachery had allowed the Piemontese to incinerate the gunpowder storages of the King of the Two Sicilies. Gone were courage, virtue and law…136

45Julliot, in addition, underlined that Piemonte-Sardinia created a unitary Italian state, whereas France had clearly expressed its desire of a federal Italy.137 Couldn’t this lead to a conflict with a humiliated France? Moreover, why wouldn’t Emperor Napoleon III try to resuscitate the claims of his family to the throne of Naples? Priest de Haerne thought that France had recognised the Kingdom of Italy with an ‘inadmissible’ motive. Napoleon III could exert blackmail on Italy, and threaten at any moment to withdraw his recognition. Recognition of a ‘state of possession’, as in Rogier’s letter to Carolus, was ‘imprudent’ in the priest’s eye.138 Thibaut added that a recognition of vicious possession could not lead to acquisitive prescription: ‘est-ce que le temps justifie la spoliation’?139

46Van Overloop sought analogies in the Old Regime foreign policy of France. Napoleon III would be best served with a balance between multiple Italian sovereigns, as created and repetitively amended after the Peace of Utrecht.140 Moreover, according to Dumortier, Belgium’s geostrategic interest would suffer from a strong Kingdom of Italy. What if France would decide to invade Belgium, and ask Italy to mobilise 300 000 men to prevent Austria or Prussia from conforming to their duty as guarantors of Belgian independence?141 This argument did not fall into deaf ears at court, as Leopold I counted on the Central Powers to counterbalance a potential French desire of aggression.142 A second geostrategic danger was that Piemonte would try to convince Napoleon III to intervene in Belgium, to divert his attention away from the Papal State.143

47Kervyn de Lettenhove is the first orator to refer to international legal doctrine. He quoted Vattel on recognition, namely in the sense that:144

48‘Les nations étrangères, ne sont point obligées de déférer aux volontés du souverain qui prend un titre nouveau ou du peuple qui appelle son conducteur de tel nom qu’il lui plaît […] Si ce titre est contre l’usage, s’il désigne des choses qui ne se trouvent pas dans celui qui l’affecte, les étrangers peuvent le lui refuser, sans qu’il ait raison de se plaindre.’

49For Kervyn, recognition was mainly an affair for the Great Powers alone, not for secondary powers such as Belgium. He considered the title ‘King of Italy’ as ‘une affaire de vanité145. Kervyn quoted Vattel again to argue that the unification of Italy could not have been complete without a peace treaty:

50‘La trêve ou la suspension d’armes ne termine point la guerre ; elle en suspend seulement les actes’146

51Kervyn notably thought that the individual utterances of Sardinian MP Brofferio, who had asked why the Sardinian army would not just march on to Rome, constituted an indication that the Pope and Victor Emmanuel II were in a state of war.147

4. National constitutional history

52‘Nous sommes pour 89, contre 93, nous sommes pour la révolution qui fonde et non pour celle qui détruit. Nous sommes pour celle des Washington, des Franklin, des Mounier, des Lafayette, des Barnave, nous ne sommes pas, nous ne pouvons pas être pour la révolution de M. Cavour et moins encore pour celle de M. Mazzini.’
Alphonse Nothomb, 28 November 1861148

53The second Catholic orator was Pierre De Decker, former cabinet leader between 1855 and 1857. De Decker’s government fell after Liberal protest against the creation of legal personality for religious charity foundations. In his speech, the parallels with Belgian constitutional history are an argument to highlight the perceived hypocrisy of the Liberal government. First, the constitutional system under Dutch period (1814-1830, against which the Belgian constitution was actually written), was likened to the Statuto Albertino149, in the sense that its extension to the rest of Italy was presented as an imposition of a preconceived text, just as the Dutch constitution of 1814 had contained the majority of the dispositions of the joint constitution of 1815.150 Second, De Decker thought the South of Italy was being ‘exploited and sacrificed’ to the North, just as the Dutch ‘intolerant minority’ would have persecuted the Belgian Catholic religion, and William I had ‘ruined the national press.’151

54Van Overloop recalled that the troops of Francis II of Bourbon were still holding on to the city of Gaeta, which was under siege by Piemonte. Would this mean that Francis II had ceased to reign in Naples, or would it be more prudent to wait?152 How would the Belgian government react, if Leopold I would be obliged to retreat to the citadel of Antwerp to fight of an attack, while the rest of the territory would be under armed occupation?153 For Dumortier, it was clear that the Liberal government prepared itself to concentrate the whole governmental machinery in Antwerp, ‘afin de pouvoir attendre les événements lorsque la Belgique aurait été envahie’.154

55The Piemontese practice of plebiscites, reclaimed by Cavour to underline that Italian unification rested on popular legitimacy,155 were likened by Van Overloop and Dumortier to French practice in 1792, 1793 and 1794.156 Undercover agents stir up revolts in the name of liberty, gangs of criminals are dispatched under the pretext of overthrowing a tyrannical government, any kind of hostile press is supressed. A unanimous vote in favour of annexation logically follows under threats with bayonets. Supporters of independence are treated as criminals and chased as wild beasts, to be shot by dozens. In sum, the end of the true Italian nationalities and installation of internal despotism are presented under the cover of liberty.157 Cavour did nothing different from the French general Dumouriez, who pretended in 1792 to plant the ‘tree of liberty’.158 Adolphe Dechamps159 stated that if one page of Belgian national history was conformable to what happened in Italy, it was the history of 1792, when general Dumouriez’s bayonets forced Belgian citizens in mock elections to adhere to annexation, scrutinized by commissaries of the Convention Nationale, and not what had happened in 1830.160 This criticism of the exceptionally high scores in favour of Victor Emmanuel II was shared by other outside observers, as well as by current historiography, which sees it as improbable that less than 1% of the votes cast would have been negative, especially in view of the uprisings in the South.161 In the most recent overview of Italian international legal history, the plebiscites were called ‘simulacra of democracy’, manipulated by Piemontese officers.162

56Dumortier insisted that the Belgian Revolution of 1830 had taken place thanks to a ‘spontaneous popular movement,’ ‘auquel l’étranger n’a eu aucune part’.163 The true revolutionaries in Italy, in his eyes, were those who fought against Piemonte, in the Abruzzi and Calabria. Without conscription and compulsory voting for Victor Emmanuel II, these regions had ‘true volunteers, as in Belgium in 1830’, armed with the spirit of the ‘righteous brigand, as we used to be in 1830’, treated as criminals by an oppressor.164

57Priest de Haerne claimed authority as a member of the National Congress and ‘patriote de 1830’.165 Any comparison between the Italian revolt and the noble Belgian Revolution was anathema. The 1815 Constitution had been imposed on the Belgian population, which had wisely tolerated the regime to avoid political instability. Yet, William I had ‘déchiré la constitution’ (tore the Constitution apart) by his message of 11 December 1829 to the Estates-General, the elected parliament of the United Kingdom of the Netherlands. The King curtailed freedom of expression, by prohibiting the use of the constitutional right to petition the monarch. He hereby violated the ‘tacit pact’ that allowed for the toleration and legitimation of the constitution. De Haerne began a slow demonstration, indicating he considered the Belgian Revolution had been more dignified and wise than the Italian Revolt. He lauded Charles Rogier’s intervention in 1830 to stop the pillaging of Dutch supporters’ belongings in Brussels. The Pope, de Haerne argued, had been much more moderate and tolerant. He had approved the Belgian constitutional order in 1847, and had publicly expressed his wish in 1848 for the creation of an Italian confederation and customs union.166 Thibaut, finally, likened Victor Emmanuel II’s invasion of Naples with William I of Orange’s attack on Belgium in August 1831. Leopold I had accused the King of the Netherlands of attacking without prior declaration…167 Francis II of Bourbon spoke ‘le même langage que le roi Léopold’.

58The Catholic descriptions of a purely ‘national’ and noble Belgian revolution of 1830 were of course derided by the Liberal party. Joseph Lebeau (1794-1865), who had also been a member of the National Congress,168 insisted on the vital French help in repelling the Dutch invasion of 1831, or in liberating the Citadel of Antwerp late in 1832. Furthermore, a joint Franco-British blockade of Dutch ports had helped to bring William I to acquiesce in the separation. Alphonse Nothomb tried to contradict this by hinting at a greater harmony, or at least a tacit agreement between the Great Powers in 1831. In 1859-1860, Napoleon III would have been a dissident in the concert of European Great Powers. In other words, Belgian independence would have been ‘posé […] conformément au droit public admis par l’Europe et de concert avec l’Europe entière’.169

59This story is not without relevance for Italy. Cavour desired recognition by Belgium, precisely because he saw Belgian independence as the first breach in the conservative state system created by the Congress of Vienna, thanks to French protection and British support.170 He was even irritated at Belgian stalling manoeuvres in the Spring, for instance when minister of War Chazal enquired how the army of the ‘King of Italy’ was organised, whereas his government had not yet recognised this title at all.171


60The outcome of the parliamentary battle on Belgian recognition of ‘Italian independence’ has been elevated in the historiographical record to the status of ‘decisive step’ in the development of an independent national foreign policy.172 The recognition of a ‘fait accompli’ proceeded from economic pressure, even if the decision was presented as a logical consequence of European international law:

61C’est une règle de droit public généralement admise, que, de la part d’une Puissance étrangère, reconnaître un autre gouvernement n’est que reconnaître un fait, savoir qu’il est généralement obéi, malgré la libre manifestation qu’un nombre plus ou moins considérable se soit permise une opinion contraire. Les Puissances étrangères suivent ici la possession […] la ligne de conduite […] nous a été tracée par un grand nombre de gouvernements. En reconnaissant le nouveau royaume d’Italie, nous reconnaissons à leur exemple un état de possessions sans nous constituer juges des événements qui l’ont établi, et nous gardons notre liberté d’appréciation vis-à-vis des éventualités qui pourraient modifier cet état de fait.173

62The quote above indicates that the Belgian government separated fact and morals, even if Piemontese breaches of international law were not unlikely.174 The governmental position clearly does not go as far as for Bluntschli in his Moderne Völkerrecht175, who subordinated public law to the ‘life of the State’. Pre-existing international treaties could automatically become void.

63Most importantly, the statement does not mention the previous unanimous recognition by the five guarantors. The Belgian government did not wait until the five guarantors of the country’s independence had all pronounced themselves. The ensuing parliamentary debate has hitherto only been analysed by diplomat Emile Banning (1836-1898)’s posthumous memorandum on Belgian neutrality.176 Banning stressed Frère-Orban’s opinion that, if the treaties of 1839 had proclaimed Belgium’s perpetual neutrality, they had, at the same time, insisted on its independence.177 This would have ruled out a full dependence on the five guarantors. Frère-Orban pretended to be consolidating a practice of three decades, not contradicted by any other state in Europe.178 Concluding his analysis of bilateral Belgian-Piemontese correspondence, Michel Dumoulin pointed out, probably more correctly, that merely the fear of the guarantors had significantly decreased.179

64If we analyse the terms and arguments invoked by the conservative opposition, the impregnation with the vocabulary and conceptual apparatus of the law of nations and constitutional doctrine is evident. Banning argued that the legal aspects of the question had been settled, since the Liberal government obtained a majority in the ensuing vote.180 Even if the specific decision to recognise Victor Emmanuel II’s title boiled down to a political appreciation, the whole debate was carried out in legal terms. General partisanship clearly transpires from the interventions by Catholic MP. Yet, well-informed lawyers as Van Overloop and Vilain XIII mobilised their expertise in the political debate. This is especially clear in Vilain XIII’s and de Theux’s intervention, where their practical experience as minister for foreign affairs is highlighted. By contrast, historian and botanic specialist Dumortier has difficulties in distinguishing morals and legal principles, as his confusion around the ius in bello illustrate.181

65Dumortier’s intervention and that of Kervyn de Lettenhove (who has difficulties in interpreting the ius ad bellum)182 give the lower chamber of Parliament the aura of an academic aeropagus, where historical culture and erudition define the relevant borders of a debate. The use of law of nations doctrine is incidental, as Vattel is invoked by both sides, and an occasional reference to Suarez by priest De Haerne is not central to the construction of his anti-recognition argument.183 The references to the ‘decisive constitutional moments’ of 1789, 1814-1815 and 1830 illustrate how the symbolic and self-defining power configurations and values associated with the past serve to define the legitimacy of the Liberal cabinet’s foreign policy within the living Belgian constitutional system. The debate in the Fall of 1861 witnessed the interpretations of history and Belgium’s international environment by the very actors who created the constitution. Thirty years later, their interpretations of the common past diverged as political partisanship had created competing narratives. The precarious nature of Belgium’s security in the society of European states compelled every government to justify its conduct as cautious and prudent, safeguarding above all the country’s sovereignty. Precisely this issue could not be confined to the domestic legal order alone.

Date added Dec. 12, 2022
© 2022 fhi
ISSN: 1860-5605
First publication
Dec. 12, 2022


  • citation suggestion Frederik Dhondt, Legal arguments in the debate on recognition of Italian independence in Belgian parliament (November 1861) (Dec. 12, 2022), in forum historiae iuris, https://forhistiur.net2022-12-dhondt