1. Origins

In France, the tradition of giving a speech at the resumption of judicial work dates back to the 14th century. It was organized in the parliaments until the Revolution of 1789. Suppressed during the revolutionary period, with all the pageantry that accompanies the return to court, the "entrance" speech quickly reappears. Under the First Empire, Napoleon I restores it by two legal provisions (art. 101 of the decree of 30 march 1808 and art. 34 of the decree of 6 july 1810). Since the decree of 6 july 1810, the back-to-school speech is an exclusive prerogative of the public ministry. It is up to the Attorney General or one of his Advocates General to pronounce it. The specific missions of public prosecutors predispose them to this task: they are responsible for ensuring the maintenance of public order, to the proper execution of the laws, rulings and judgments. Accustomed to pronouncing powerful indictments, they master all the rhetorical tricks intended to convince their audience.

The old Belgian law does not keep any trace of the entrance speech. Nevertheless, in accordance with the second Napoleonic decree, back-to-school speeches, devoted to one or other subject “suitable for the occasion”, are pronounced in the imperial courts of Brussels and Liège of 1811 to 1815. Under Dutch rule, they cease to be pronounced in Brussels, while they continue to be in Liège.

2. In Belgium

In the young Belgian state, after the judicial organization of 1832, the attorneys general at the courts of appeal quickly reestablish the tradition of giving a speech on the occasion of the start of the school year. At the Court of Cassation, the back-to-school speech made its appearance later with the law on the judicial organization of the 18 june 1869. Before this one, the Court of Cassation, like the justices of the peace, sat permanently : she had no holidays, nor return.

3. “Entrance speech” vs “mercuriale”

A certain confusion has gradually established itself in the legal jargon between the expressions “return to school” and “mercurial”. Originally, they are however two completely distinct speeches. The mercurial, organized by article 8 of the law of 20 april 1810, was pronounced, as indicated by his name, the first Wednesday after the start of the school year. The Attorney General was reviewing, before the Court meeting in chambers, the manner in which justice had been served over the past year. In the decades 1830 and 1840, the "mercuriale" was still pronounced at the Court of Appeal of Liège, but probably not in Brussels and Ghent, despite the attempts of Baron d'Anethan, Justice Ministry, to rehabilitate it in these two courses. The confusion between the two discourses settled definitively with the article 222 of the law of 18 june 1869, so designed : “Tous les ans, après les vacances, les cours de cassation et d’appel se réunissent en assemblée générale et publique. Le procureur général près chaque cour prononce un discours sur un sujet convenable à la circonstance [le discours de rentrée]. Le procureur général près la cour d’appel signale, en outre, la manière dont la justice a été rendue dans l’étendue du ressort ; il indique les abus qu’il a remarqués [la mercuriale], il fait enfin les réquisitions qu’il juge convenables d’après les dispositions de la loi, et la cour est tenue d’en délibérer. Les procureurs généraux envoient au ministre de la justice copie de leurs discours et des arrêts intervenus”. In other words, the legislator of 1869 wanted to merge the "entrance" speech and the "mercuriale" within the same public audience. This is most certainly the reason why the second expression has gradually become synonymous with the first..

4. Legislative evolution in the 20th century

The suppression of the "entrance" speech in France, from 1903 to 1930, does not influence the Belgian legislator in any way. On the contrary, voices are raised in Belgium to deplore this attack on the French judiciary. The Journal des Tribunaux writes about this: “Il n’est pas légitime de destituer la magistrature du privilège de parler ainsi. C’est la faire déchoir de son véritable rôle et la réduire vis-à-vis de la Loi à un état de subordination et de passivité contre lequel proteste le caractère essentiel de sa fonction”.

In the 20th century, the "entrance" speech is experiencing new legislative changes as well as an increased tendency for attorneys general to delegate this mission to their attorneys general, or even their substitutes. Article 39 of the law of 15 june 1935 imposes on the courts and tribunals, for the holding of general meetings, the use of the language prescribed for the local administrations of their seat by the law of 28 june 1932, i.e. unilingualism : French at the Liège Court of Appeal and Dutch at the Ghent Court of Appeal. This rule does not apply to the Court of Cassation and the Brussels Court of Appeal where the "entrance" speeches are now delivered in Dutch on even-numbered years, in French in odd years and vice versa after the Second World War and to this day. This provision puts the authors and listeners of the "entrance" speech in Brussels on an equal footing – particularly the new doctors of law, French and Flemish speakers, brought to pronounce their oath before the Court of Appeal at the end of the same formal re-entry hearing.

Then we have to wait for the law of 10 october 1967 containing the Judicial Code to see new legislative changes concerning the "entrance" speech. Article 351 of the Judicial Code, which comes into force in 1970, replaces the article 222 of the law of 18 june 1869, but with modifications of form and not of substance. In the same era, the practice of the "entrance" speech is extended to new labor courses, who utter it for the first time in 1971. The single article of the law of 16 july 1980 then significantly modifies the art. 351 of the Judicial Code, by making the use of the welcome speech optional in the courts of appeal. In this, Belgium is following the same evolution as in France, where this path had been taken since 1974. The Attorney General at the Court of Cassation must always make a speech on a subject “suitable for the circumstances”, while the attorneys general at the courts of appeal are only required to report the manner in which justice has been done within their jurisdiction and to indicate the abuses they have noticed, be the ancient mercurial. In the courts of appeal, only if the speaker “considers it useful”, that he may also make a speech on a subject suitable to the circumstances. The Judicial Code thus retains the ceremonial speech at the Court of Cassation, while it only requires a “statistical” speech during the call. Since then, however, the tradition of giving a welcome speech has largely continued in the courts of appeal. The provision that currently governs the back-to-school speech appears in article 73 of the law of 22 December 1998, entered into force on 2 august 2000. It differs little from previous requirements, except that the speech must now be “adapted to the circumstances”. This synonym for the word “suitable” in force for nearly two centuries will undoubtedly have been chosen for its less moralizing semantic content..

Ultimately, the legislation relating to the back-to-school speech has changed little since 1869, even since 1810. This undeniably testifies to a certain attachment of Belgian magistrates to this judicial tradition., certainly binding for the speaker, sometimes boring for some listeners, but whose essential contributions to legal doctrines and judicial history are not really questioned by anyone.

Aude Hendrick
Saint-Louis University Brussels

For more information, consult the thesis (being published) by Aude Hendrick, “Des mots de circonstances. Les discours de la haute magistrature belge au XIXe siècle”, Thesis in history defended on 20 april 2012 (promoters : Jean-Pierre Nandrin (FUSL) and Xavier Rousseaux (UCL)).