Ethnic Groups and Language Rights

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ETHNIC GROUPS AND LANGUAGE RIGHTS

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ETHNIC GROUPS AND LANGUAGE RIGHTS COMPARATIVE STUDIES ON GOVERNMENTS AND NON-DOMINANT ETHNIC GROUPS IN EUROPE, 1850-1940 Volume III

Edited by SERGIJ VILFAN in collaboration with GUDMUND SANDVIK and LODE WILS

European Science Foundation NEW YORK UNIVERSITY PRESS

DARTMOUTH

European Science Foundation 1993 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Dartmouth Publishing Company Limited.

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British Library Cataloguing in Publication Data Ethnic groups and language rights. — (Comparative studies on governments and non-dominant ethnic groups in Europe,

1850-1940; V. 3).

1. Europe. Ethnic minorities. Native language. Policies, history of governments. I. Vilfan, S. (Sergij) II. Sandvik, G. (Gudmund) III. Wils, L. (Lode) IV. European Science Foundation V. Series

323.14

Library of Congress Cataloging-in-Publication Data Ethnic groups and language rights/edited by S. Vilfan in

collaboration with G. Sandvik and L. Wils.

p: cm. — (Comparative studies on governments and nondominant ethnic groups in Europe, 1850-1940; v. 3)

ISBN 0-8147-8763-0

1, Europe-Languages—Law and legislation—History. 2. Minorities—Legal status, laws etc.-Europe-History. 3. Europe-Languages-—History. 4. Ethnic relations-Europe-— History.

I. Sandvik, G.(Gudmund)

II. Wils, Lode.

III. Title.

IV. Series.

KJC5146.L36 1990 344.4'09-dce20 [344.049] ISBN 1 85521 096 7 Printed in Great Britain at the University Press, Cambridge

9042345 Cie.

Contents List of Tables

List of Maps

Vil Viii

Notes on Contributors Titles in the Series Series Preface

xiii XV

Introduction Sergi Vilfan Belgium on the Path to Equal Language Rights up to 1939 Lode Wils Precarious Language Rights under Changing

17

Governments: The Case of ces teal Pgst

Frédéric Hartweg

The Catalan Language in the Conflict between Centralism and Autonomy, 1850-1940 Antoni Milian iMassana Rhaeto-Romansh in Switzerland up to 1940 Bernard Cathomas An Ethnic Mosaic — Austria before 1918

Sergi Vilfan

37 65 89 111

The Transition of the Slovaks from a Non-dominant Ethnic Group to a Dominant Nation

Jozef Karpat

135

The Decline of Minority Language Rights in South Tyrol, 1918-1940

Ludwig Walther Regele

155

Majorities and Minorities in an Inverted Position: Czechoslovakia, 1918-1939

10 11

Helmut Slapnicka The Minority Problem of Poland, 1918-1939

173

Pawel Korzec

199

Language Rights in Independent Estonia, Latvia and Lithuania, 1918-1940

Dietrich André Loeber

221

CONTENTS

vi

gy IS 14 18)

The Case of the Swedish Ethnic Group in Finland, 1850-1940 Tore Modeen Non-existent Sami Language Rights in Norway, 1850-1940 Gudmund Sandvik Conclusion: A Historical Perspective Lode Wils Conclusion: A Legal Perspective Bruno De Witte

303

Index

sills)

251 269 201

List of Tables

Language distribution in Alsace, 1875-1885 Language distribution in Alsace, 1900-1910 Language distribution in Alsace, 1931-1936

Changes in the number of communes exempt from using German as the official language, 1872-1892 The Rhaeto—Romanic population, 1850-1940

40 41 42

eR mwWN

—_

Czechoslovak census returns, 1921 and 1930 Jewish employment in the Polish civil service, 1921

Jewish SSO WHww

employment in the Polish civil service, 1931 Jewish employment in the civil service in Galicia, 1931 Jewish employment in the Polish civil service, 1921-31 Census returns by ethnic group in Estonia, Latvia

OZ 90 176 213 214 214 215

pe Sp Poo BO" WON PrP RRR

13.1

and Lithuania The Sami population, 1840-1930

223, 282

List of Maps

Language regions in Belgium

Linguistic boundaries in Alsace—Lorraine The Catalan language region division of Switzerland into Cantons and the location of the Canton Grisons. The prevailing

36 64 88

The at Gah Gi

languages and dialects in the Canton Grisons

Regions inside the Canton Grisons in which Rhaeto—Romanic (Romansh) prevailed in 1860. The comparison showing the territorial loss during 80 years Languages of daily life (Umgangssprachen) in the Austrian part of Austria-Hungary, 1910

The language of the Courts. Bilingual Courts in the Western part of Czechoslovakia (Bohemia, Moravia and Silesia) in 1921 National groups in Czechoslovakia (1930) Poland’s national structure in 1931 Baltic States - Independence Period (1918-1940) and 1945 Main Sami dialects

Sapmi and some Sami centres

Viii

109

110 134 196 197 219 249 289 290

Notes on Contributors BERNARD CATHOMAS, born 1946 in Breil/Brigels, Switzerland; lives in Chur; studied Germanic languages, linguistics and history at

the University of Zurich; Ph.D. on the basis of his socio-linguistic and pragmatic research of the bilinguism of Rhaeto-Romansh people; political activities on the level of the Canton of the Grisons

(Graubtinden); since 1980 Secretary of the Lia Rumantscha (Romansh League), a politically and religiously neutral union founded 1919 in order to coordinate the activities of associations supporting the Rhaeto-Romansh language and culture. FREDERIC HARTWEG, born 1941 in Strasbourg; studied in Nancy, Saint Cloud, Paris-Sorbonne and Hamburg, master and teacher in

German, graduated in linguistics; Doctor in Phil. and Humanities; Professor at the University Paris X-Nanterre; Director of doctoral

studies for German and of the Research Centre for Germany; visiting professor at the Universities of Carleton (Ottawa), Kassel and Middlebury Graduate Language School (USA); correspondent fellow of the Historische Kommission in Berlin and of the Research Centre

on plurilinguism (Brussels), member of the Griindungssenat (foundation Senate) of the European University Viadrina of Frankfurt/O.

and of the French-German Research Committee for the History of France and Germany in the 19th and 20th centuries; his publications

deal with religious and linguistic minorities (Huguenots, Alsatians), as well as German and French Protestantism, they include: Langues et conflits (co-author) (Nanterre 1987); Friihneuhochdeutsch (co-author)

(Tubingen 1989); Protestantismes francais et allemand (Strasbourg 1989).

JOZEF KARPAT, born 1914 in Nitra, Czechoslovakia, died 1989 in

Bratislava; graduated 1937 at the Faculty of Law, Comenius University, Bratislava, [UDr; employed at the Faculty of Law since

1937. Judge of the Administrative Court in Bratislava 1945; Collaborator of various scientific institutes 1969; Researcher at the Institute of

State and Law of the Slovak Academy of Sciences in Bratislava. Deals with the history of the Hungarian public law on the Slovakian territory; his publications include: Corona Regni Hungariae v dobe arpadovskej (during the Arpadian period) (Bratislava 1937, German: ix

Xx

Weimar

ETHNIC GROUPS AND LANGUAGE RIGHTS

1960); Zakonodarné moc v Uhorsku v rokoch 1526-1604 (The

legislative power in Hungary 1526-1604) (Bratislava 1944), ‘Pramene

k narodnostnej otazke v Uhorsku’ (Sources concerning the question of nationalities in Hungary), Historicky Casopis 21 (1973). PAWEL

KORZEC,

born 1919 in Lodz, Poland; after the Second

World War studied history in Lodz, graduating in 1948; from 1956 lectured in modern Polish history at the University of Lodz; deprived

of his post and went into exile in 1968; from 1969 to 1984 Researcher in

the Centre National de la Recherche Scientifique, Paris; received his

doctorate from the Sorbonne; Honorary Director of research at the

CNRS; his publications include: The Revolution of 1905-1907 in the Lodz region (in Polish) (Warsaw 1956); Ein halbes Jahrhundert revolutionarer Bewegung im Gebiet Bialystok 1864-1914 (Warsaw 1965); Juifs en Pologne Falic, La question juive pendant l’entre-deux-guerres (Paris 1980). DIETRICH ANDRE LOEBER, born 1923 in Riga, Latvia; Dr. iur., M.A., Dr.h.c., Professor of Law, University of Kiel (emer. 1989), lives in Hamburg; Foreign Member of the Academy of Sciences of Latvia;

Visiting Professor, University of California Los Angeles, Law School;

Stanford Law School; Adelaide Law School; University of California, School of Law, Berkeley; University of Latvia, Law Faculty; Tartu University, Law Faculty. Author of studies on international and comparative law, Soviet and Baltic law. ANTONI

MILIAN

I MASSANA,

born 1954 in Barcelona, Spain;

Doctor in Law (Barcelona 1981); Administrative Law Professor at the Universitat Autonoma de Barcelona. Deals with language rights, the

judicial review of administrative agencies acts, as well as with

educational law; Executive Editor of the Review Revista de Llengua i Dret (Barcelona); his publications include: El Tribunal de Cassacié de

Catalunya 1 l’organitzaci6 del contencids administratiu a la II Republica (Barcelona 1983), ‘La regulacién constitucional del multilingiiismo’, in Revista Espanola de Derecho Constitucional (No 10, 1984); ‘Ordena-

ment linguistic’, in Comentaris sobre l’Estatut d’autonomia de Catalunya (Institut d’Estudis Autonomics, Barcelona 1988); ‘Legal Considerations on the linguistic Rights in the Education System in Catalonia’, in Langue et droit, Actes du Premier Congrés International de Droit linguistique comparé (Montreal 1989). TORE MODEEN, born 1929 in Helsinki/Helsingfors, Finland; Juris doctor in 1962; Armfelt Professor of Public and International Law, Abo Akademi, 1968-77; since 1977 Alex Art Professor of Local Government, Law and Finance, University of Helsinki-Helsingfors;

his publications include:

The International Protection of National

NOTES ON CONTRIBUTORS

xi

Minorities in Europe (1969); ‘De folkrattsliga garantierna for bevarandet av Alandséarnas nationella Karaktir’ (The International Protection of the

National Identity of the Aland Islands, Scandinavian Studies in Law (1973); ‘La convention de l’/Unesco concernant la lutte contre la

discrimination dans le domaine de l’enseignement d’Aland’, Revue des droits de l'homme (1977).

en les iles

LUDWIG WALTHER REGELE, born 1944 at Bayrischzell, Germany; studied Law, Political Sciences and Sociology in Munich where he became Rechtsreferendar, and in Siena where he obtained

the doctorate in jurisprudence; Barrister in Bozen/Bolzano; President of the Landesverband fiir Heimatpflege in Siidtirol (South-Tyrolian Provincial Union for Homeland-care) as well as President of the Dachverband fiir Heimatschutz in Nord-, Ost- und Siidtirol (Federation for Homeland protection in North-, Eastern- and South-Tyrol);

his publications include several essays on the history of South-Tyrol and translations of Italian laws into German.

GUDMUND SANDVIK, born 1925 in Hyland, SW Norway; Cand. philol. 1954 (major subject History, minor subjects French and Norwegian); Dr. philos., University of Oslo 1966; Lecturer, 1950-52 at the Norwegian Section of Lycée Corneille, Rouen; 1955-58 at the

University of Paris (Norwegian language and literature); most of the years 1958-65 at the Gudbrandsdal State College; 1965-75 at the

Institute for History, University of Oslo. Between 1955 and 1965 scholarship from the Norwegian Research Council for three years; since 1975 professor of legal history at the University of Oslo, Faculty of Law; Member

of Det Norske Videnskaps-Akademi

since 1977;

Chairman of a government commission to prepare a law on the

spelling of place names 1797-83; member of the law-preparing Sami Rights Commission since 1980; his publications include: Hovding og konge iHeimskringla (1956); Prestegard og prestelonn (Pd.D. thesis 1965); Det gamle veldet (1975); some articles on legal history; contributor to Encyclopaedia Britannica. HELMUT SLAPNICKA, born 1916 in Zatec, Saaz, Bohemia; studied

in Prague legal and political sciences; Doctor in Law 1938 at the German University, Prague. After 1945 lawyer in economic and financial services in Upper Austria; 1970 Titular Lecturer on East

European public law at the University of Graz, 1987 Titular Professor. Deals with the contemporary and historical law in the countries which succeded to the Danubian Monarchy, especially the Bohemian provinces; Anton Gindely award for the history of the Danubian Monarchy 1983, Georg-Dehio award 1990; his publications include:

ETHNIC GROUPS AND LANGUAGE RIGHTS

xii

Osterreichs Recht auferhalb Osterreichs (Schriftenreihe des dsterreich-

ischen Ost- und Siidosteuropa-Instituts 4) (Wien 1973). SERGIJ

VILFAN,

Solicitor,

Director

born

1919

in Trieste,

Italy;

at the

studied

University of Ljubljana, graduating in Law 1941, Doctor in Law 1942, of the Town

Archives

of Ljubljana

1950-70;

Professor of Legal History at the University in Ljubljana until 1989; Honorary Professor of the Faculty of Law in Graz, Austria; member of the Slovenian Academy; foreign member of the Polish and Austrian

Academies;

President

of the International

Commission

for the

History of Towns (1981-91). Deals with legal, social and economic

history as well as legal ethnology and historical metrology; his

publications

include:

Rechtsgeschichte der Slowenen

(Graz 1968);

Gospodarska in druzbena zgodovina Slovencev, Zgodovina agrarnih panog

(Economic and Social History of the Slovenes, Agrarian sector), most of vol.

2 (Ljubljana 1980); ‘Jugoslawien’, in Handbuch der Quellen und Literatur

der neueren europdischen Privatrechtsgeschichte, III/5 (Munchen 1988). LODE

WILS, born 1929 in Antwerp, Belgium; received at the

University of Leuven in 1950 his Dr. iur., in 1954 Dr. Phil, in 1963 Dr. phil. habil. (Aggregatie H.O.); in 1961 Assistant Professor; in 1965 Associate Professor; in 1968 Professor and 1968—71 President of the

Campus Kortrijk of the University of Leuven; publications on the

political history of Belgium, including: Honderd Jaar Vlaamse Beweging

(Hundred years Flemish Movement), 3 vols. (1977-1989), and The Flemish Movement — A Documentary History 1780-1990 (co-authorship with L. Vos; ed. T. Hermans, The Athlons Press 1992).

BRUNO DE WITTE, born 1955 in Kortrijk, Belgium; Law degree of

the University of Leuven (Belgium), 1978; Diplome of European Studies, College of Europe,

Bruges,

1979; Doctor in Law

of the

European University Institute in Florence (EUI), 1985. Assistant Professor of Law, EUI 1985-7; Associate Professor of Law, EUI 1987-—

9; present function: Professor of European Community Law (Jean Monnet Chair), Rijksuniversiteit Limburg, Maastricht (Netherlands); editor of European Community Law of Education (Baden Baden 1989)

and The Common Law of Europe and the Future of Legal Education (Deventer 1992).

Comparative Studies on Governments and Nondominant Ethnic Groups in Europe, 1850-1940 Titles in the Series

Schooling, Educational Policy and Ethnic Identity Edited by J.J. Tomiak in collaboration with K.E. Eriksen, A. Kazamias

and R. Okey

Religion, State and Ethnic Groups

Edited by D. Kerr in collaboration with M. Breuer, S. Gilley and E. Suttner Ethnic Groups and Language Rights

Edited by S. Vilfan in collaboration with G. Sandvik and L. Wils Governments, Ethnic Groups and Political Representation

Edited by G. Alderman in collaboration with J. Leslie and K. Pollmann Ethnic Groups in International Relations

Edited by P. Smith in collaboration with K.K. Koufa and A. Suppan The Formation of National Elites

Edited by A. Kappeler in collaboration with F. Adanir and A. O’Day Roots of Rural Ethnic Mobilisation Edited by D. Howell in collaboration with G. von Pistohlkors and E. Wieganat Ethnic Identity in Urban Europe

Edited by M. Engman in collaboration with F.W. Carter, A.C. Hepburn and C.G. Pooley

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2

Belgium on the Path to Equal Language Rights up to 1939 LODE WILS

The constitution of the Kingdom of Belgium, established by the 1830

Belgian revolution,

initiated the renaissance of a country four

centuries old which had been annexed by France in 1795. That annexation and the fundamental transformation which the French

Revolution had brought to the Austrian Netherlands was to give a high profile to the Belgian linguistic problem. The Period Belgium

Preceding

the Establishment

of the Kingdom

of

The lands forming the Austrian Netherlands had been grouped together by the dukes of Burgundy in the fifteenth century. Their northern and southern borders, which the present state of Belgium has retained, were created in the seventeenth century as a result of

territorial losses both to the United Provinces and to the France of Louis x1v. The demographic, economic and cultural centre, as well as the political capital, Brussels, were in the Dutch speaking area of the confederation: the county of Flanders and the duchy of Brabant.’ These principalities conducted their official business in Dutch, as did the towns and their local bodies. (Until the nineteenth century Dutch was also called Flemish.) But the civil service of the confederation

employed French exclusively for its internal affairs and tended to use it in its relations with subordinate authorities as well. Ever since the Middle Ages the cultural and political influence of France had been very strong (the county of Flanders had been part of the Kingdom of France until the sixteenth century). During the Enlightenment two contradictory tendencies mani-

fested themselves. On the one hand the process of gallicisation developed as a result of the attraction exerted by French culture and because the use of French was consciously favoured by the higher 17

18

ETHNIC GROUPS AND LANGUAGE RIGHTS

authorities to serve the ends of rationalisation and centralisation. On

the other hand there grew up among intellectuals a love of the language of the people, which was considered to be both the basis of nationhood and the instrument for enlightening the people. However, Latin remained the medium of instruction at university level until the end of the ancien régime and was the principal language used even at secondary level. The annexation to Revolutionary France from 1795 to 1814 had a

much more decisive impact than that which was felt in the satellite

states such as the Helvetian Republic. The ancient confederation of the ancien régime was replaced by the modern unitary state. The use of Dutch was excluded from public life: from local as well as departmental government, from the legal system, from education, from the army, even from the press and the theatre by certain prefects. Consequently, the gallicisation of the educated classes progressed very swiftly within 20 years, French having also replaced Latin as the medium of higher and secondary education. Furthermore, among

those who were supporters of the French Revolution — those who

later came to be known as the liberals — the very idea that it was

necessary to cultivate the language of the people as a basis for

individual and national development was to disappear. The administrative and judicial structure introduced by the French Revolution exists in broad outline in Belgium to the present day. The line of the departmental (today called provincial) borders followed roughly that of the linguistic border. The four northern provinces were Dutch speaking, as were the districts of Brussels and Louvain in the province of Brabant. The four southern provinces and the district of Nivelles in Brabant were French speaking. However, a few dozen communities were incorporated into a province with a different language. Belgium was united with Holland in the United Kingdom of the Netherlands at the Congress of Vienna in 1814-15. In this state Dutch

was spoken by 75 per cent of the population: by the Dutch and the majority of the Belgians. King William 1 of Orange saw that the revival of Dutch in Belgium was a means by which the unification of the Catholic Belgians and the Dutch, the majority of whom were

Calvinist, could be achieved. On 1 October 1814 he decreed that the use of Dutch was authorised in deeds of notaries, including those

which had to be registered, and that certificates of civil registration

should be drawn up in the language ‘which was used in the community where the certificate was drawn up’. But the exclusive

use of French in the legal system was maintained until 15 September 1819, when provisional freedom in linguistic use was decreed. At the same time a decree obliged all public authorities to use Dutch exclusively in the four Dutch speaking provinces from 1 January 1823.* Dutch was introduced into secondary education gradually

EQUAL LANGUAGE

RIGHTS IN BELGIUM

19

between 1823 and 1829 and Latin was reintroduced as the medium of

instruction in the universities. The linguistic policy of the government, which ultimately aimed at introducing Dutch throughout Belgium, was to lead to an anti-Dutch reaction during the Belgian revolution. From 1830 to 1870

In the Kingdom of Belgium, established 1830-1, the Dutch speakers,

or Flemish, constituted more than 55 per cent of the population; the

French speakers, or Walloons, more than 40 per cent. As the urban elite in Flanders was accustomed to using French as the language of polite society, and also in reaction to the ‘Dutch regime’, the revolution proclaimed linguistic freedom but adopted French as the principal language of the country. The provisional government promulgated the following decree for the army on 26 October 1830:

‘French, being the most widely used language in Belgium, will be

employed

exclusively in commands.’

On 20 November

came

a

further decree: ‘The official bulletin of the laws and acts of government will be published in French.’ On 27 November the National Congress ordered that its decrees would be published in the bulletin

by the executive authority ‘with a Flemish or German translation for the communes where those languages are spoken’.* The Bulletin

officiel was thus to be bilingual but the Dutch text of the laws and

decrees was no more than a translation without legal force. The constitution of February 1831 stipulated in Article 23 that ‘The use of the languages most commonly Seek in Belgium is optional; it can

only be regulated by law, and then only for acts of the public authorities and for legal affairs.’ In principle, therefore, each town or provincial

council,

elected

by gentlemen

of means,

was

to be

responsible for this matter, as was each judge. The freedom to use the language of one’s choice was not enacted simply for the benefit

of individual

citizens

but also, or more

importantly, for the benefit of the authorities, the magistrates and the lawyers, who were not to be required to use nor to understand the

language of the people but who were to be allowed to give preference to French. This emerges clearly from the debates in the National Congress on the formulation of Article 23 and is confirmed by the practice of government bodies and the legal system. The basic philosophy is clearly expressed in a judgement handed down in the Brussels court of first instance on 27 July 1844, refusing to admit the petition of the head of a family, D. Sleeckx, who was demanding that

his son’s birth certificate be written in Dutch, the language in which

he had made his notification and which was also the language of the majority of the population of the city. It was also a language known by the registrar:

20

ETHNIC GROUPS AND LANGUAGE RIGHTS

Whereas the plaintiff, having the incontestable right to make his notification in Flemish, could not convert that right into an arbitrary

demand to impose that language on the defendant (the registrar), who

could not be required to use it without affecting his rights as guaranteed in the constitution. Whereas, it would be superflous to make enquiries as to the language employed by the majority of the residents of the city of Brussels and as to whether this language is known to the defendant; That in fine. . . everyone may use whichever one he chooses of the languages commonly spoken in Belgium throughout the length and breadth of the country, on the understanding that he shall not impose it on those not required to know it.*

The proclamation of linguistic freedom during the revolution had set in train a new process of gallicisation of public life and education in Flanders. Around 1840 the situation began to stabilise. In order to ascertain what it was we shall begin with the legal system.

The justices of the peace and local magistrates, who were in direct

contact with the litigants or the accused, in general used the language

of these people. In the great majority of cases in the countryside,

therefore, they used Dutch for the hearing and the sentence. In the

towns the use of French was more frequent but even so it was confined to a minority. Everything depended, however, on the goodwill of the judges and also on their own knowledge of Dutch. Thus in the capital, the very gallicised city of Brussels, the language of

the people was excluded from all written procedures. The same

situation can be noted in certain cantons of Flemish Brabant and Limburg, although they were rural. In the courts of first instance, the situation varied not only according to their geographical location but also according to whether it was a civil or criminal hearing. For the latter the accused appeared in person, whereas in the former litigants did not normally appear. In civil cases the parties were always

represented by a solicitor and often assisted by a barrister. University courses, those in law among others, were once more given in French

in the Kingdom of Belgium. At Mechlin the gallicisation of civil proceedings had already been completed by November

1830; that of criminal proceedings was

completed in 1841. At Antwerp the development was completed in 1834 and 1837 respectively. On the other hand, the use of Dutch was retained in Bruges, which was also a provincial capital, in almost all criminal proceedings, and in 1857 it was still used in 44 per cent of civil cases. In rural districts such as Veurne and Turnhout Dutch was used in the great majority of hearings, even civil ones. Within the geographical factor, three aspects can be discerned which tended to reinforce gallicisation. It was not only a question of the degree of urbanisation. The proximity of the linguistic border, as well as the fact that the jurisdiction of the court included some

EQUAL LANGUAGE RIGHTS IN BELGIUM

21

Walloon communes, undoubtedly furthered the rapid gallicisation of

the courts of Courtrai in West Flanders and of Tongeren in Limburg, although the courts of the capitals of their provinces remained bilingual. The third factor of importance was the court of appeal which had jurisdiction over any given court. The court of Ghent, the

jurisdiction of which included West and East Flanders, continued to

employ Dutch in some criminal cases as late as 1860. This circum-

stance will doubtless have influenced the relatively strong position of

this language in the courts of first instance within its jurisdiction,

compared with the courts within the jurisdictions of the court of Brussels (Antwerp and Brabant) and the court of Liége. It is also to be noted that the assize courts in West Flanders and above all in East Flanders (sitting at Ghent) used Dutch (at Ghent in 98 per cent of cases as late as 1860), while those in Brabant and Limburg contented

themselves with the appointment of an interpreter for the accused.

For the commercial courts we only have data for the jurisdiction of

the court of appeal at Ghent. There gallicisation proceeded slowly. By 1860 it was complete in the court of Ostend, but the proceedings were still in Dutch in 12 per cent of cases at Saint-Nicholas, in 20 per cent of cases at Ghent, and in 48 per cent of cases at Bruges. It must be stressed that, in the absence of any legal requirement, a

great deal depended on the custom established in each court. It could happen that, at the stage of the preliminary investigation or the more detailed investigation by the examining magistrate, a different language would be used from that employed for the hearing. The same point applies to the closing speech for the prosecution, to the

speeches for the defence and to the sentence. The situation as regards the civil service resembled that of the legal

system. There was a-great diversity which can be explained in part by geographical factors. The internal departments of the central govern-

ment, the provincial governments and those of large sized towns used French exclusively. The same thing many rural communes and in towns situated close to border and around the capital. In most villages and in towns government was carried on in Dutch.

and medium happened in the linguistic certain small

There were not only variations from commune to commune but

also among’ the different departments of the same

communal

administration, depending on the degree of contact with the public.

Thus the civil registers were compiled in Dutch almost everywhere, even in the departmental capitals, and certificates were written in the language of the notification, which meant that the great majority of such certificates were in Dutch.” Doubtless the fact that civil registration was already being carried out in Dutch by 1814 was not without significance in the maintenance of this tradition. Population registers, drawn

up at the time of the decennial censuses,

were

ETHNIC GROUPS AND LANGUAGE RIGHTS

22

generally compiled in Dutch, though here there were more exceptions than in civil registration. Lastly, the administration of ecclesi-

astical affairs was generally conducted in Dutch, even in certain towns where most of the departments used French. The influence of the clergy should be noted here. The communication of information to the public was generally made in Dutch or in both languages

unless, in the towns, it was assumed that the information concerned

only the educated class. The departments most often gallicised were the militia and the civic guard (the latter existing only in the larger communes). The corres-

pondence emanating from them was addressed in Dutch to most

residents but it was very often in French when sent to the higher

authorities. It is clear that gallicisation was, for the majority of small and

medium sized communes, a phenomenon which came from above. In 1840, following a petition in favour of Dutch, the provincial councils of Antwerp and East Flanders expressed the wish that

provincial authorities correspond with local authorities in Dutch

unless these preferred French. At the request of the provincial councils the Minister of the Interior gave the district commissioners (who supervised the smaller communes) instructions on those lines.

He announced that he had contacted his colleagues so that in these provinces the persons appointed to public posts involving contact with the public would as far as possible be candidates with a knowledge of Dutch.

All of this was very vague, as were the wishes (not decisions) of the provincial councils as regards provincial government. Consequently the petition of 1840 did not bring about a return to the use of Dutch but only a slowing down in the progress of French. This progress

went hand in hand with the burgeoning of the economy and of education,

and it facilitated administration.

One example of this

progressive gallicisation is the fact that from 1845 onwards, when the

Moniteur belge (Belgian Monitor) replaced the Bulletin officiel (Official Bulletin) the laws and decrees were no longer published with their Dutch translation. This only appeared after a certain interval in the Receuil des lois et arrétés (Collection of Laws and Decrees).

Between 1861 and 1867 the Minister of the Interior set up a ‘Flemish Bureau’ which replied to letters written in that language. Never-

theless, on 16 December 1876 the governor of West Flanders reported to the Minister of the Interior that the provincial government and the district commissioners corresponded with the towns and communes in French, which is the official language of the government adopted by the civil service. . . . With the exception of border localities, where French is

the only language spoken, all the communal authorities in my province, about 240, although capable for the most part of corres-

EQUAL LANGUAGE RIGHTS IN BELGIUM

25

ponding in both languages, use Dutch, with only a few exceptions, in their administrative activities and in their relations with the population, which is essentially Flemish.

It is clear that the correspondence in French was almost exclusively that conducted with the higher authorities. The governor added that one employee of the provincial government had the task of trans-

lating documents which concerned the general public, notably the debates and decisions of the provincial council which were published in both languages, as was the Mémorial Administratif (Administrative

Bulletin) of the province, which contained the decrees, decisions and

circulars concerning the communal administrations.

In Limburg and Brabant the practice was more or less the same as in West Flanders. In the province of Antwerp, on the other hand, and probably in East Flanders as well, Dutch was used in the correspond-

ence of a number of communes

with-the province and with the

district commissions, and there was a slow increase in the number of

such communes.

To sum up, central and provincial government, and even that of the large and medium sized towns, was conducted in French, as were

the contacts between them. Their communications with the public were generally in both languages, unless it was assumed that these

concerned only the educated classes. Some translations were done at the level of central government® while others were done at the level of the province, the town, the district commission or even the rural

commune. The system did not give rise to massive protest. Nevertheless, the national enthusiasm of the Belgian revolution

had given an impetus to literary and artistic culture, and to the study

of history, and gave birth to a movement for the restoration of the language of the people, in accord with the ideas of the Romanticism of the period. This movement enjoyed the sympathy of the Catholic party (the party of the clergy) which dominated the rural areas. In 1840 it made its appearance on the political scene with the petition we

have mentioned. From 1848 it was reinforced by the current of democracy and gained strength in the cities, despite the opposition of the urban liberals. In 1857 the communal council of Ghent decided that communal regulations should be formulated officially in Dutch (in other words, not simply in translation), but a few months later the Liberal party regained its customary majority on the council and government in

Ghent remained in French until the end of the century. From 1863 until 1872 the city of Antwerp had a Catholic political majority, which decided that from then on Dutch would be the language of the internal administration of the city. Outgoing correspondence would be written in Dutch but where the reply was in French the city would

24

ETHNIC GROUPS AND LANGUAGE RIGHTS

also use that language. Asa

result, the major part of the correspond-

ence with ministries, the province, the chamber of commerce and so

on remained in French because these bodies had replied in that language to the first and sole letter in Dutch. In fact, even the internal administration of the city remained bilingual, partly from this pressure from above and especially after the Liberal party regained

the upper hand in 1872. In that year the province of Antwerp began to

introduce Dutch into its internal administration.

‘The Flemish Movement’, as it was called, had become sufficiently

strong to have laws passed concerning the use of Dutch in the civil service and in criminal justice under the Catholic governments which were in power from 1870 to 1878 and from 1884 to 1914. Some Legal Guarantees on the Use of Dutch, 1873-1918

Between 1873 and the end of the First World War a number of linguistic laws were passed by the Belgian parliament. In general, each of these laws had only limited scope, which is why there were so many of them. Even when taken as a whole they did no more than guarantee a limited place to Dutch in Flanders, without affecting the supremacy of French. Concerning the Legal System From 1873 onwards a series of laws progressively gave a guarantee that in Flemish districts criminal proceedings would be held in Dutch unless the accused requested a trial in French.’ In 1872 the Brussels

Court of Appeal had given permission to plead in Dutch for the first

time, but only on condition that the defence speech be translated into

French. The following year the Supreme Court opposed such a defence speech even on these terms. Official translations of the penal code and the code of criminal procedure were published in 1867 and 1874 respectively. Courses in Dutch on criminal law and procedure were established at the universities from 1890, as was an examination for candidates for the

posts of magistrate or notary in Flemish areas from 1896. The code of military criminal procedure (under the law of 15 June 1899) and the regulations for courts martial and the military court (found in the

royal decrees of 5 January 1900) guaranteed Flemish soldiers the right of access to judges and clerks of the court who knew Dutch, but not that the whole of the proceedings would take place in their language. The same was true for the labourer who appeared before the industrial tribunal (under the law of 15 May 1910).

The files concerning appointments to the magistracy of the court of first instance at Antwerp show that a good knowledge of Dutch was

EQUAL LANGUAGE

RIGHTS IN BELGIUM

vs)

regarded as necessary by the Antwerp magistrates themselves (but not by their Brussels colleagues) for the examining magistrates and

the judges of the assize court and for the officials of the prosecutor's department. One candidate had been rejected for his lack of such knowledge in 1850 under a Liberal government; six candidates under the Catholic government in 1870-8; a single candidate during the

Liberal government

of 1878-84; and seven under the Catholic

government in 1884-93. After 1898 the Dutch text of all new laws and royal decrees had the

force of law equally with the French text. But the civil and commercial codes and the other laws already in force were not promulgated in Dutch. In fact the proceedings before the civil and commercial courts were not legally regulated in any way. They were conducted in French in the great majority of cases. It was a matter for the goodwill

of the judges, not only whether they used Dutch themselves but even whether they allowed the barristers to-use it. There seems to have been a growing intransigence among the magistracy, who opposed a widening use of Dutch in civil procedure, which went hand in hand

with the widening use of Dutch in criminal procedure as prescribed

by the law.®

While proceedings in French were always possible and sometimes the only option in Flanders, proceedings in Dutch did not exist in

Wallonia. They were provided for only before military courts.’ Concerning the Civil Service

The law of 22 May 1878 stipulated that in the Flemish provinces and districts the notices and communications which civil servants address to the public are to be written in Flemish, or in Flemish and French. Civil

servants are to correspond with communes and individuals in Flemish, unless these communes and individuals request that the communication take place in French, or themselves make use of this language in the correspondence.”°

This law did no more than confirm that which had been promised to

the provincial councils of Antwerp and East Flanders in 1840. It had been passed by a Catholic government which was replaced by a Liberal administration a few weeks later. The archives of the

communes and the district commissions do not give the impression

that the law brought about a change under the Liberal government of 1878-84. Thus the two successive governors of West Flanders in this period wrote only six letters in Dutch out of some 500 letters concerning education which they sent to the 20 communal government offices of the district of Roeselare. These were exclusively Dutch

ETHNIC GROUPS AND LANGUAGE RIGHTS

26

speaking but they did not send out a single circular in Dutch.

The law began to show its effects after June 1884 when the Catholic

party regained power and remained in power until the First World War. The correspondence of the majority of district commissioners with

the rural communes

did in fact take place in Dutch;

the

governors, the ministries and the various public services (such as the railways) gradually conformed with the law. They were spurred on by ‘committees of grievances’ among the public and by various ministerial circulars. '’ Subsequent laws placed upon various depart-

ments the requirements of the law of 22 May 1878,’* and its area of application was enlarged by royal decrees and ministerial instruc-

tions. None of this affected the Walloon districts which remained exclusively French speaking although some of them contained some Flemish communes.’® The linguistic laws did-not regulate the

internal sections of the departments of central government, nor the

provincial and communal governments. Examination of the archives shows that after 1884 there was a resumption of the tendency to introduce Dutch into the internal administration of the communes. It was accelerated by the revision of the constitution which began towards the end of 1890 and which

resulted in the introduction of a qualified universal suffrage. The first

communal councils elected by the whole male population did not meet until 1 January 1896 but even before that date the city of Mechlin had decided to introduce Dutch into its administration. The same thing happened in 1896 in other towns of moderate importance, such as Sint-Truiden and Hasselt. With the exception of Brussels and its surrounding area there was progress everywhere in the use of Dutch in internal administration, which resulted, around 1900-10, in the

exclusive or predominant use of Dutch in the great majority of communes. But French still enjoyed pre-eminence in all the major cities with the exception of Antwerp, in a great number of communes close to the linguistic border and in several district commissions and provincial administrations. The introduction of Dutch at local level went hand in hand with an advance in bilingualism at national level, particularly after the first election on the basis of universal suffrage in October 1894. Several

representatives spoke Dutch in the House of Representatives, which had never happened before except for taking the oath; until 1914

Dutch was used for less than 15 per cent of the debating in the House, and in the debates in the Senate it was more or less non-existent. After 3 March 1895 the Moniteur belge appeared in completely

bilingual form.’* The law of 18 April 1898 stipulated: ‘Laws are passed, sanctioned, promulgated and published in French and

Flemish. . . royal decrees are likewise made and published in French and Flemish . . . with neither text taking pre-eminence’.

This law, dated 9 September 1897, dealing with the civic guard, and

EQUAL LANGUAGE RIGHTS IN BELGIUM

27

the code of military criminal procedure of 15 June 1899, demonstrated

a change of principle in linguistic legistation. The latter had given a certain amount of protection (in Flanders only) to people who did not

know French, without touching the exclusive use of French in Wallonia and in the internal administration of the civil service; nor

had it affected the de facto hegemony of French in Flanders. The three laws just mentioned, on the other hand, were inspired by the idea of the pepe of the two national languages in Belgium. The Dutch text of laws and decrees became authentic instead of being merely a translation; the giving of orders to the civic guard in Flanders was to be done exclusively in Dutch; and Flemish soldiers

were able to defend themselves in their own language before military courts in Wallonia. In 1900 a fundamental change to the Belgian electoral system, the introduction of proportional ey een in place of the system of simple majority, put an end to the majority which the Catholics elected from the Flemish districts had formed ‘in the Belgian parliament since 1884. In the period before the First World War no new law recognising the equality of the two national languages was passed and even the pace of the transitional linguistic legislation was restrained. The codes predating 1897 were not promulgated in Dutch. In July 1870 the government had declared in its report to the king that ‘The cabinet,

concerned

for the rights and interests

of the

different population groups, will appoint only civil servants who understand their language’. The candidates for an appointment in government departments in the Flemish region had to undergo an examination in Dutch. Although improvements were made to the system in 1884 and later, it gave rise to many legitimate grievances. Although the Flemish were more numerous, only half of the vacancies were reserved for them. The examinations were held only

for junior officials who were in direct contact with the public. Flemish

candidates had to demonstrate a knowledge of both languages since the internal administration continued to be in French. Meanwhile,

Walloons could be appointed and promoted when they had knowledge only of French, even on occasion in the Flemish region when there was a lack of Flemish candidates with an adequate knowledge

of French. Such practices continued right up to the eve of the First World War. Asa

result Walloons were overrepresented, particularly

in the higher grades. The army was considered to be the last bastion of French ‘used exclusively in commands’ since the 1830 revolution. The Minister of War stipulated in 1868 that the teaching of reading and writing to illiterate soldiers must take place in their native language. In 1875 a system of parallel teaching was organised for the literate so that for

these lessons all the recruits could be separated according to language. In 1884 this separation was widened to include the first

28

ETHNIC GROUPS AND LANGUAGE RIGHTS

period of military training, during which period the Minister ordered the observation of the rule, followed by the majority of commanding officers, of grouping the recruits in each unit (company, squadron or battery) under the direction of instructors who have a knowledge of their language and are able to give them all the explanations needed on the different

aspects of their service. Once the men have started to shape up it will

be useful to address them and accustom them to express themselves in both languages.

Training in the native language was possible thanks to the work of several young officers who, during the 1870s, had translated the military regulations into Dutch. In the years that followed, minis-

terial circulars prescribed the use of bilingual manuals and spoke

highly of bilingual officers, but the law of 1888 on education at the military academy went only so far as to encourage and not to require ‘practical’ and ‘adequate’ knowledge of Dutch. The right of officers, non-commissioned

officers, civil servants,

magistrates and lawyers to pursue their careers without learning Dutch was therefore at the root of the situation and even of the legislation. As far as the army was concerned it was the law of 2 July

1913 which put an end to the situation for the future by requiring of

new Officers a proper knowledge of both languages. The education of Dutch speaking non-commissioned officers was prescribed by this law, as was bilingualism throughout the army, but without division into monolingual units and with the maintenance of commands in French alone. On paper this represented great progress; in reality it was unworkable.

The situation for the vast majority of central government civil servants is described in the parliamentary report of the Linguistic Committee of the House in 1920: Present practice requires Flemish people to sit their examinations for many posts in French, even when they are soliciting positions in the regional administration of the state in a radical Flemish region. Civil servants acting for the government in Flanders are also required, in many cases, to communicate with their superiors in French. This occasions certain difficulties with promotion for some of them.

This is something of an understatement. We know the exact percentage of Flemish private soldiers and non-commissioned officers who fell in the First World War and there is a marked discrepancy. In 1914 the Flemish accounted for 61 per cent of the private soldiers but only for 53 per cent of non-commissioned officers. The situation had deteriorated further by 1918: 70 per cent of private soldiers and 49 per cent of non-commissioned officers.

EQUAL

LANGUAGE

RIGHTS

IN BELGIUM

29

Towards the Exclusive Use of Dutch in Flanders

From the end of the nineteenth century the Flemish movement was slowly becoming more radical and was turning towards the equality of

the two national languages in Belgium through the exclusive use of Dutch in Flanders. This process was accelerated by the First World War, which gave a strong impetus to democratic trends and was followed by the introduction of unqualified universal suffrage. The use of Dutch in

the debates in the House of Representatives increased to more than 30

per cent. Teaching at the State University of Ghent was to be given in Dutch, partially from 1923 and exclusively from 1930. In 1917 the German authorities who occupied almost the whole of Belgian territory had ordered the introduction of Dutch throughout the civil service. When the country was liberated in November 1918 there was

a return

to the status quo ante.

Nevertheless,

certain

communes continued to use Dutch in the departments where French

had been used until 1917. But the reverse happened in the provincial government of Antwerp, which reverted to a preponderant use of French which it had given up 50 years before. The law of 31 July 1921 concerning the use of languages in the

conduct of government business was novel in several respects. It

applied to the whole of Belgium and not just to Flanders. It was applicable to communal and provincial governments as well as to the central government. It fixed the language to be used in internal administration and in correspondence between different depart-

ments, and the linguistic knowledge of all civil servants and not just of those who were in direct contact with the public. It was based on

the principle of the equality of the two national languages, so that Dutch acquired the same legal position in Flanders as French in Wallonia. This was, in fact, to recognise the exclusive linguistic use of

the two regions but with some exceptions. A certain degree of bilingualism was imposed on central government and provincial

departments throughout the country (in Wallonia also, therefore) in

contact with the public, and a complete bilingualism

in those

communes where 20 per cent of the electorate requested it (which happened in a number of Flemish towns, but not in Wallonia). The

communal and provincial councils could add the use of the other language to that of the region in some or all of the departments under their authority. This exception was likewise put into practice in Flanders only. The civil servants in the central civil service, in the

province of Brabant and in the communes of the Brussels area, were required to know both languages. Candidates had to demonstrate an elementary knowledge of the second language and from 1925 every civil servant of the grade of divisional head and above had to demonstrate a good knowledge. This law brought about a radical change in the language used for

30

ETHNIC GROUPS AND LANGUAGE RIGHTS

internal business in a great number of departments in Flanders after 1 January 1922. In accordance with this law a royal decree of 27 January 1922 stipulated that matters affecting Flanders would be dealt with in Dutch in the central civil service and those affecting Wallonia in French. On the Flemish side, the law of 31 July 1921 was considered inadequate on certain points. The provincial council of Brabant, the communal

councils of 17 communes

in the Brussels area and those of the

communes situated in a province belonging to a different linguistic region could choose which language to use for internal administration. They chose French almost without exception. In the Flemish communes situated in a Walloon province, such as St Martens-Voeren, the administration therefore remained in French. On the other hand,

bilingualism was resisted as much in Wallonia as in Flanders. A new law of 28 June 1932 strengthened monolingualism in the regions but also strengthened bilingualism in the Brussels area and in

the provincial government of Brabant. It restricted the freedom of communes in the matters although it still authorised local government departments to choose to respond in the local language or in the

language in which the resident had addressed himself to them. It specifically brought within its scope state-owned services, whether directly or indirectly under ministerial control, and public services run by the private sector or those in which the public had an interest, and, in general, all subordinated departments and public authorities’. The law no longer upheld the requirement for civil servants in central government departments to know both languages’. An exact balance in the

number of posts reserved to each linguistic group was to be observed,

however, and no one would be allowed to compete in both the Dutch

and the French examinations at the same time. Business would be dealt

with without translators in the language of the region. In order to ensure the maintenance of the unity of jurisprudence, each senior civil

servant responsible for the management of a department was to have a

bilingual assistant where necessary.

Provision was made for possible changes to the boundaries of the regions and of the bilingual Brussels area. In fact the linguistic system of a commune was to be changed if according to the latest census

(which took place every ten years) it appeared that the majority of the inhabitants usually spoke a language different from that of the linguistic group to which the commune had been assigned. If 30 per cent of the inhabitants declared that they usually spoke the language of the other linguistic region, the commune was to be given the status

of external bilingualism. These provisions triggered off a linguistic struggle in the communes close to the linguistic border where the decennial census could cause a change in administrative status. Furthermore, they were difficult to apply in the several dozen communes (out of more than 2000) which were in a province with a

EQUAL LANGUAGE RIGHTS IN BELGIUM

different

linguistic

status.

There

were,

31

to say the least,

great

problems in the Flemish communes situated in Walloon provinces.

The provincial boundaries were not to be adjusted to the linguistic realities until 1962, when even Voeren was attached to Limburg and Comines to Hainault.

The law of 1932 had not forbidden the authorities to attach a translation to the notices and communications which they addressed to the public. Such translations were frequently given in Flanders but not in Wallonia and the Flemish movement therefore demanded that they be discontinued in the name of equality. Towards the end of the 1930s the government was obliged to put pressure on the lower authorities to respect monolingualism everywhere. The division of the army into Dutch speaking and French speaking

units was bought about by two laws of 7

November 1928 and 30 July

1938. The form of words of the 1928 law was retained: The soldier’s training will be given entirely in his native language. . . . The soldier’s native language is presumed to be that of the commune where he enlists for the militia, preserving the right of any individual who declares that his native language is not that of the commune to request that he be assigned to a garrison or unit with a different linguistic system.

The law of 1938 added that in each monolingual unit that language is to be used for training, for commands to all ranks, the administration,

the management and for all other internal departmental relations. The law of 1928 provided for companies to be grouped within the

framework of a battalion with the same linguistic system, whenever

their numbers permitted. The law of 1938 provided for such groupings within-monolingual regiments and divisions. Each of

these laws improved the position of Dutch in the training of officers and non-commissioned officers. The second created in law a complete equality of the two national languages, though it was only

after the Second World War that this equality was realised in practice.

As regards the legal system, a law of 15 June 1935 enshrined the principles of the equality of the two languages and monolingualism within the regions. It was obligatory to use Dutch for legal proceedings in Flanders, French in Wallonia and the language chosen by the defendant or respondent in bilingual communes. Indeed, it was no longer just criminal justice (including military justice) that was involved,

but also civil and commercial

justice, where

the great

majority of cases before 1935 had been heard in French."*° Before all

the appeal courts and before the Supreme Court, the language used for the hearing was that in which the judgement being contested was written. For the first time barristers were required to conform to the usage of the region, at least after a long period of transition.

32

ETHNIC GROUPS AND LANGUAGE RIGHTS

However, if the parties agreed they could request the transfer of their case to a court in the other linguistic region. The same option was offered to an accused who could express himself more easily in the other language. This was a solution for, among others, the residents

of communes belonging to a province with a different linguistic system, until 1962 when the provincial borders, and therefore the

judicial districts as well, were adjusted to the linguistic borders.

The law provided that in the military court and all courts martial, in the Court of Appeal and in all the courts of first instance in Brussels

there should be Dutch divisions and French divisions. The judgements of the Supreme Court are written in both national languages, although they are pronounced only in the language used for the proceedings (that is, in the language in which the judgement

submitted to the court is written). The law regulated in detail the use of the languages in all administrative judicial proceedings (ratification of civil documents and so on) and in the phases of preliminary inquiry and of investigation in criminal cases giving special attention to the bilingual Brussels area. It also regulated the

linguistic knowledge required of magistrates, clerks, jurors and the

like. The law of 15 June 1935 remains the one that regulates the use of language within the Belgian legal system, although it has been amended on several points, particularly by the law of 9 August 1963 (the district of Brussels) and the law of 23 September 1985 (German).

The law of 1932 concerning the civil service has been replaced by the law of 2 August 1963 which reinforces the monolingualism of the regions. The borders of the regions were established and removed

from changes by census by a law of 8 November

1962, which

transferred all the communes which were ‘lost’ to provinces of their language. The Use of German

In 1839 the German speaking part of Luxembourg was detached from

Belgium to form the Grand Duchy of Luxembourg.’” Certain official texts continued, nevertheless, to call German

one of the national

languages of Belgium, although it was now only spoken by less than one per cent of the population. This demonstrated Belgian irredentism which persisted until after the First World War. But this did not mean that linguistic rights, other than the freedom established by the constitution, would be guaranteed to the 25 000 inhabitants of some

20 German speaking villages around Arlon, nor to the 4000 inhabitants of villages in the province of Liége close to the German border. The fact that Arlon became the new provincial capital of the Belgian

EQUAL LANGUAGE RIGHTS IN BELGIUM

33

province of Luxembourg must have tended to accelerate its gallicisation. None of the linguistic laws before 1935 referred to this region or

regulated the use of German.!®

|

In a report of the Senate Commission of the Interior on the bill of 1921 regulating linguistic use in the civil service we read that The three senior civil servants whom your commission has interviewed have formally declared before it that in Belgium no commune makes use of German; that no administrative document or act is drawn

up in that language; that all proceedings of the communes are written in French; that in the administration of finance the communications

with the taxpayers in the eastern border areas is done in French.

In 1920, in accordance with the Treaty of Versailles, Belgium annexed the cantons of Eupen and Malmédy which had belonged to Prussia since 1814. These areas had 9500 French speaking inhabitants around Malmédy and 54 000 German speaking inhabitants around Eupen and Sankt-Vith (later formed into a separate canton). During the first few years Belgian linguistic legislation was not applied to the

‘redeemed cantons’. The law of 1928 on the army did not mention German; that of 1932 on the civil service stipulated that ‘The present law does not apply to the cantons of Eupen, Malmédy and Sankt-

Vith.’ They were therefore in a position of constitutional freedom comparable with that existing before the laws of 1873 and 1878.

The law on the use of language in the legal system of 15 June 1935 contained detailed stipulations for the inhabitants of the annexed territories, which were all attached to the district of Verviers. In the

courts of the justices of the peace and the police courts of Eupen and Sankt-Vith, as well as in the industrial tribunal of Eupen, German

was to be the language of the hearings unless the respondent or the

accused requested the use of French. In the three other cantons”’ the

respondent or accused could demand the use of German. The criminal court of Verviers had to grant a hearing in German to a Belgian citizen living ina German speaking commune who requested it. The civil court of first instance and the commercial court of Verviers could, at the request of the respondent, order that the hearing proceed in German. They could refuse the request only if the respondent had an adequate knowledge of the language used to draft the certificate instituting the proceedings. Before the court of appeal in Liége the language used for the proceedings was that in which the appealed judgement was written, but the court could give its judgement in French even when the proceedings had been in German. The Supreme Court could order its proceedings to be held in French or in

Dutch if the appealed judgement had been written in German. It will be recalled that, according to the law on the use of languages in the army of 30 July 1938,

ETHNIC GROUPS AND LANGUAGE RIGHTS

34

the soldier’s training will be given entirely in his native language. . . in linguistic units which are no smaller than the company. .. . Only officers and non-commissioned officers who demonstrate by examin-

ation a working knowledge of German may be assigned to a German speaking unit. Notes

Flanders corresponded roughly to the modern provinces of East Flanders and West Flanders, Brabant to the modern provinces of Brabant and Antwerp. French remained the required legal language throughout the province of Brabant until 31 December 1822. The districts of Brussels and Louvain were not subject to the royal decree of 15 September 1819 until a further decree of 26 October 1822. German was spoken in the eastern part of Luxembourg, which was split off from Belgium in 1839 to form the Grand Duchy of Luxembourg. A decree of the Supreme Court of 19 May 1873 came to a similar conclusion. A translation of surnames by the authorities, or under pressure from them, such as occurred in other countries, was never practised in Belgium. Likewise, place names were not systematically translated. In July 1870 a new government undertook to publish in the Moniteur in both languages all the circulars addressed to the provinces and towns. The law of 17 August 1873 fixed this procedure from the point of the accused’s first appearance before the judge, but without the reports of experts, the intervention of the civil parties (the victims who claim damages) and the speech for the defence (to which the speech for the prosecution could conform). The law only applied to one of the three courts of appeal, that of Ghent, and not to the Supreme Court nor to the assize court of Brabant. The criminal and police courts of the district of Brussels were not required to hold proceedings in Dutch unless the accused understood no other language. The law of 3 May 1889 complemented that of 1873 in respect of the language used for the minutes and the investigation and that of the prosecutor; it gave more effective guarantees. The law of 4 September 1891 concerned the courts of appeal of Brussels and Liége and the disciplinary procedure for barristers; the law of 9 September 1897, the disciplinary procedure for the civic guard; the law of 22 February 1908, the district of Brussels and the court of assize of Brabant; the law of 2 October 1918,

the courts martial and military court. On 5 August 1895, the Minister of Justice ordered the prosecutor's offices to use

10

Dutch on an equal basis in cases where it was not legally prescribed. Similar injunctions do not seem ever to have been given to the judges. By the law of 15 June 1899 and the law of 2 October 1918. The law of 22 February 1908 made it possible for civilians to request a hearing in Dutch before a court of appeal, even though the initial criminal sentence had been handed down in French by a court in Wallonia. The law on industrial tribunals of 15 May 1910 gave Flemish labourers, who were numerous in Wallonia, the unique right to a translator at public expense. In the district of Brussels a civil servant had no obligation on him unless an individual or commune had taken the initiative in using Dutch or had requested

its

1

The district commissions which had a minority of Walloon communes under

their control tended to use French even with their Flemish communes. In

EQUAL LANGUAGE RIGHTS IN BELGIUM

12 13

35

general, close to the linguistic border there was a broad zone where public administration, just like cultural and social life, was much more gallicised than elsewhere in Flanders. The local railways (law of 24 June 1885), the civic guard (9 September 1897), the National Bank (26 March 1900), the army (31 June 1913), the National Water Board (26 August 1913). A smattering of bilingualism penetrated the Walloon districts through the coinage (1893), excise stamps (1891), postage stamps (1893), railway timetables,

14

15

16

17 18

and so forth. Since 1845 Dutch texts had only appeared occasionally in the Moniteur, such as the text of the statutes of an association which had been accepted by royal decree. From 1871 certain publications appeared in both languages; more still after 1888, and particularly after 1893. An elementary knowledge of the second language was still required for civil servants in the communes of the Brussels area and in the provincial government of Brabant, and an ‘adequate’ knowledge for the grade of director and above. In 1933 in Flanders 8500 of the 53 596 cases were heard in Dutch; in 1934 there

were 10951 out of 50 682. In the same years 9 per cent and 13 per cent respectively of the judgements of the courtof appeal of Ghent were given in Dutch, 2 per cent and 2 per cent in the Brussels court and 0 and 1 per cent in the Liége court. Before 1839 a bilingual French-German version of the Bulletin officiel was published. The circular of the Minister of War of 21 September 1875, which ordered that all militiamen should follow a course of the primary curriculum, stipulated that these courses should be given in French for the Walloons, in Dutch for the

19

Flemish and for the German speaking Luxemburgers. Following the annexation of the Canton of Eupen, the right of the residents of certain neighbouring villages in the province of Liége to use German had been recognised, but not of those in the province of Luxembourg.

Sources and Secondary Works Research in the archives of 87 communes, four district commissions and of the province of Antwerp were carried out between 1979 and 1981 by students of the Catholic University of Louvain under my direction and with the assistance of Mr Louis Vos and Mrs Lieve Gevers. The results of research into the provincial government of West Flanders and of the twenty communes of the district of Roeselare have been published by Mr Jean-Marie Lermyte, Het administratief taalgebruik in West-Vlaanderen 1878-1885, Biekorf, 77, (1978), pp. 23-32. Research in the legal archives has been carried out by Mr Herman Van Goethem and published, by the Koninklijke Vlaamse Academie voor Wetenschappen at Brussels in 1990: De taalstoestanden in het Vlaams — Belgisch gerecht, 1795-1935. The files on the appointment of magistrates in Antwerp have been studied by Mr Marc Van den Wijngaert in his unpublished bachelor’s degree thesis De invloed op de benoemingen van de magistraten in de negentiende eeuw . . . 1844-1899, Louvain, 1964. Ihave traced the history of the Flemish Movement in my book Honderd jaar Vlaamse beweging, I, Il and III (Louvain, 1977, 1985 and 1989).

The map is taken from Memo from Belgium, January—March 1972, Ministry of Foreign Affairs, Brussels.

e

Map 2.1

Language regions in Belgium

jaIYD UMO} JO

jeudey

/youes4)(yong

youesy4

aBenBue| uoiBas

youss4 aBenBbue| uoibesyum paj9e}01d yoing eBenBue| Ayiouiw

yojng eaBenBbue; uolbes4m pa}oe}01d youes4 eBenBue; Ayourw

jenBuijiguoibas

aBbenBue;

uewsan aBenbue; uolbasyum payda}0idyouas4 aBenBbue; Aysoulw

peel youasy aBenBue; uoi6es yim pajyoajoid uewsad

pee

@9UIAOJd

eBenBue; uoi6as

JEIQUIAOIG ssapioq

V7) yojng

ee

36 ETHNIC GROUPS AND LANGUAGE RIGHTS

3

Precarious Language Rights under Changing Governments: The Case of Alsace, 1850-1940 FREDERIC HARTWEG

The Development of Knowledge and Use of Languages From the ancien régime to the Second Empire

Under the ancien régime

From the time ofits germanisation, following

the great waves of migration at the end of the Roman empire, Alsace

had become Frankish speaking in the area north of the forest of Haguenau and Alemannic speaking to the south of it, the Romanic linguistic border proving to be remarkably stable. For a long time the

wooded massif of the Vosges remained a much more significant natural barrier than the Rhine, which split into many branches and

was the axis of north-south communication. The Oath of Strasbourg

in AD 842, sworn in the two vernacular languages, represents the

tangible proof of the linguistic differentiation at the heart of the Frankish federation. An integral part of the German Holy Roman Empire, Alsace was exposed from an early stage, because of its proximity, to French influence, which operated through the activities of numerous cultural intermediaries. In the sixteenth century, at the point when the province was at the height of this cultural influence, the first intellectual skirmishes occurred over whether it belonged in French or German territory. Its entry into the French political orbit after 1648 did not profoundly weaken the German character of Alsace. The directives of 1666 concerning the teaching of French produced no great results. The measures and arrangements aimed at the introduction of French, as well as the appeal to the affection of Alsatian subjects for their monarch as an encouragement to use his language, met with opposition which was often passive but occasionally overtly formulated in statements of principle. If the effect of these measures 7

ETHNIC GROUPS AND LANGUAGE RIGHTS

38

remained modest as far as the learning and use of French were concerned, it was nevertheless the case that literary production in

German declined in Alsace and that French became the vehicle of a new social model and the condition for access to royal service. German remained the broadly dominant language, however: in its standard form in written communication and in church services, in

its dialect form in daily spoken usage. On the eve of the French Revolution, contemporaries calculated those who spoke French at several

thousand,

those

who

understood

it at several

tens

of

thousands. Others suggested a proportion of one out of every three hundred Alsatians knew French. During the French Revolution and Napoleonic Empire .The Revolutionary period was marked by an intense public debate on the questions of ‘language and national affiliation’, ‘linguistic standardisation and diversity’, ‘language of government and language of the citizen’, and

by the clear formulation of the fusion of linguistic usage and (anti) patriotic attitudes. Proposals for the deportation or transplantation of the population for linguistic purposes came to nothing, and measures in the educational sphere (for example, the decree of 29

December

1793 on the establishment of a free school offering

instruction in French in each commune or canton of the Lower Rhine)

had only a limited effect on account of the lack of finance and teaching staff. The ‘statistical notes’ and departmental ‘yearbooks’ generally overestimated the knowledge of French when they stated that the language was familiar to ‘all those who enjoy a certain degree of affluence . . ., approximately half the departement’ (this estimate rose

to three-quarters of the population of Strasbourg), while admitting at

the same time that it was ‘almost entirely unknown [in] some rural cantons’ (for example the Lower Rhine in 1802). Other estimates,

which limited knowledge of French to a thorough education and to urban areas, suggested that one-third or one-quarter of the population spoke French and attributed an important role in the advance

of French to the presence of the military and demobilised soldiers

who had married in Alsace. The establishment of the first Ecole Normale d’Instituteurs (Teachers’ Training College) in France at

Strasbourg 1810 was an important step in the development of the

education system as an instrument for the propagation of French.

From the Bourbon restoration to the Second Republic In 1833, the year in which the loi Guizot (Guizot’s law) on the organisation of primary education was enacted, French was still not taught at all in many

schools in certain arrondissements (districts), or else it was often taught

by methods used for dead languages. However, the July Monarchy represented an important phase in the progress of French in Alsace.

LANGUAGE RIGHTS IN ALSACE, 1850-1940

39

During this period the state language did indeed strike deep roots among the bourgeoisie and in intellectual circles, achieving in certain areas a relative parity with German. The progress of industrialisation

and of commerce,

the greater mobility of the population,

the

extension of military service, a broader participation in national political life, the Education act of 1833, the proliferation of nursery

schools, the use of French in teacher training and, in consequence, in

primary education, were all major elements in this process. They were the results of a policy which gradually acquired the means to put its objectives and activities into practice. This process of introducing French had only the slightest effect on the urban lower classes and on the rural population, which remained attached to its dialect, while the existence of standard German in society declined. The Period 1850 to 1870 If one observer could note in 1847 that the Alsatians were forgetting German without learning French, it is undeniable that the progress of the latter accelerated after 1850, notably in printed works. The use of French spread widely among the bourgeoisie from then on and became a sign of social distinction, even when it remained borrowed and clumsy, while active competence in German declined, most notably as a result of its gradual

eclipse as a medium of instruction. The Joi Falloux (Falloux’s Law) of

1850, as well as confessional education for girls which ensured the transmission of French through the mother, had the same tendency as the pursuit and intensification of the economic and political integration of the province, already well under way in 1850. The Churches vigorously committed themselves to the maintenance of German, ‘the language of the heart’, in primary education and protested against the use of the ‘direct method’ which would produce ‘a situation of half knowledge and half ignorance of the two

languages’. In 1863 about one-third of the children of school age could neither read nor write French; the same was true of many of the intake of 1866. But French had made rapid progress in girls’ schools. The upper bourgeoisie had largely switched to using French. Among the cultivated members

of the middle class, the civil service and

liberal professions, French as the language of study often alternated with German and dialect, the languages of professional practice. Dialect remained the language of oral communication in general use

for the majority. The Period from 1870 to 1918 The annexation by Germany in 1871 marked an abrupt check on the progress of French and gradually and partially negated the earlier results. This development was accentuated by migrations in opposite directions: the departure for ‘Old

France’ of the so-called ‘optants’, those who exercised their legal right

ETHNIC GROUPS AND LANGUAGE RIGHTS

40

to leave for France and who often belonged to the social classes with a command of French. This amounted to some 350 000 people up to

1900 (of whom many were young men wishing to avoid German

military service). Then there was the arrival of numerous immigrants

from the Reich (13 per cent of the population of the Lower Rhine in 1895, 40 per cent in Strasbourg in 1910), a phenomenon that led to the

appearance in certain districts of High German as the language of oral communication.

The statistics for 1875 and 1885 are derived from projections for the

total population, starting from global estimates determined at the level of communes. The statistics for 1900, 1905 and 1910 ask the question about native language without distinguishing between standard German and dialect and seek to determine ‘ethnic’ attachment.

Table 3.1: Language distribution in Alsace, 1875-1885 (in %) Dates

Communes

1875 1885

F

G

M

Lower Alsace

4.09

95.52

0.39

Upper Alsace

3.71

78.71

17.58

Lower Alsace

3.84

95.80

0.36

Upper Alsace

3.60

88.24

8.16

F: French language areas. G: German language areas. M: mixed.

In April 1871 German replaced French as the medium of instruction in primary schools and French also disappeared as a subject from the

curriculum. Transitional arrangements regulated the change from

one language to the other in secondary education. Special measures were taken to provide complementary education in the two languages in French speaking communes or mixed communes where

French was dominant. Thanks to the system of ‘general compulsory’

education, German progressed rapidly. Certain methods of education took account of the basic knowledge

of dialect, but French

managed to keep its hold in the girls’ boarding schools (where it

became a distinctive feature) officially until 1888; but with greater

difficulty after that date and then only by ‘getting round’ the rulesasa result of the restrictions imposed by the authorities on confessional education for girls. Lively political campaigns in favour of the reintroduction of French into primary education (1875-87; 1908-12),

which brought together political Catholicism, the liberal bourgeoisie and social democrats, met with rejection by the authorities who

interpreted these demands as an attempt to keep the question of Alsace open and to view the annexation as temporary. These same

LANGUAGE RIGHTS IN ALSACE, 1850-1940

4]

Table 3.2: Language distribution in Alsace, 1900-1910 (in %) Lower Alsace

G 95.8 95.8 95.8

1900 1905 1910

Upper Alsace

F SPY 3.6 3.8

G 93.3 93.4 93,0

F 5.8 De, 6.1

reasons explain in part the refusal of the Reich, in the 1911 constitution, to grant the Reichsland (German province) Alsace—Lorraine the autonomy that would allow it to legislate on linguistic matters.

Apart from education other factors such as military service, the

development of the press, the demands for economic integration, German immigration (important in the commercial and industrial sectors, in the civil service and in education) and ‘mixed’ marriages represented the progress of German, which experienced a revival in

the literary sphere. French became a mark of social prestige, of open resistance to the German regime, of cultural and social segregation and of demarcation in relation to the immigrant bourgeoisie. These

latter characteristics, in some degree, also filtered through to dialect

(which was slightly contaminated by High German and experienced a clear reduction in the number of French loan words) for those who did not have a command of French. The vehicle of an important cultural movement, particularly creative in poetry and the theatre,

French acted as a kind of ‘filter’ against germanisation. Its flowering was connected with the attempt to define a specific culture, an

‘Alsatian mentality’ drawing on both sources, French and German. The extreme measures of germanisation promulgated from 1914 to 1918,

concerning

patronymics,

place

names,

inscriptions,

the

prohibition of the use of French in public (regarded as an act hostile to Germany) partly negated the efforts at linguistic pacification by the civil authorities. At the end of the German period it can be estimated that farmers, labourers, small artisans and the great majority of the rural population used dialect as the medium of daily communication and wrote German. Those working in tertiary sector occupations used dialect, German and, to some extent, French. The lower and

middle civil service tended to use standard German. The higher ranks of the civil service and the liberal professions of Alsatian origin used all three linguistic forms (German exclusively with immigrants), while the Alsatian upper bourgeoisie marked itself out from the immigrant bourgeoisie by the use of French and was the linguistic model for the Alsatian middle and petty bourgeoisie.

42

ETHNIC GROUPS AND LANGUAGE RIGHTS

The Period from 1918 to 1939 The emigration or expulsion of many German immigrants (including a large number of civil servants) and the return of Alsatian émigrés altered the linguistic composition of the population, although to a lesser degree than in the previous period. The statistical survey of 1926, the only one to consider the ‘usual language’, shows 89 per cent for the combination ‘Alsatian and German’,

20 per cent for the categories ‘French’ and ‘French and

Alsatian and German’ in the Lower Rhine, 79.6 per cent and 23 per

cent for these categories in the Upper Rhine. The percentage forthe

second group falls to less than 10 per cent in some rural arrondissements and reaches about 40 per cent in Strasbourg and 29 per cent in Mulhouse. The censuses of 1931 and 1936 consider the (stated) knowledge of these languages and provide the following figures: Table 3.3: Language distribution in Alsace, 1931-1936 (in %) Lower Rhine Census 1931 1936

Upper Rhine

ie

D

G

E

D

G

502 5722

86.1 86.6

82.4 82.7

54.6 61.0

85.9 87.3

77.1 ERD

F: French, D: Dialect, G: German

French became the language of primary education again on 15 January 1920. German was taught from the third year of school (three hours a week) and could be used for religious education lessons (four hours). The arrival of teachers and inspectors from ‘the interior’ and the recycling of the regional teaching force made it possible to deal with the new situation while lively polemics took place on the use of

the ‘direct method’. The measures of 1927 (the teaching of German

advanced by half ayear, the relaxing of the directives on the teaching

methods,

the introduction of a German

test for the certificate of

primary studies for dialect speakers) contributed to a calming down

of the situation.

In the press German language papers were dominant. The language employed saw a growth of regional characteristics, particularly signs of interference from French. The local radio offered

bilingual and dialect programmes. In cultural life, the coexistence of

the two languages was gradually re-established and dialect continued to play a lively part in poetry and in the theatre. The linguistic question was an important element in the ‘autonomy crisis’. Parity between German and French was demanded by the Catholic, Democratic and Communist parties, while other political groups had

only a utilitarian view of the teaching of German, which was seen as

LANGUAGE RIGHTS IN ALSACE, 1850-1940

transitional.

The

Church

and

the

Catholic

party,

43

which

were

dominant in Alsace but more preoccupied with the maintenance of the concordat and confessional schools, offered only an inadequate defence of linguistic particularism.

After 1918, education became the favoured instrument of a policy

of systematic linguistic assimilation, which from then on had the whole population as its target, whereas educational policy before 1870 sought to win the upper and middle classes of society for French. In the space of less than 20 years the results of such a policy could only remain incomplete. The various measures of reinstatement — often paralleling those taken by the Germans in 1871 in linguistic matters — which followed the return of Alsace to France created an unhealthy situation of which the following were the main features: e

the creation of guilt by way of the confounding of separatism and the protection of linguistic particularism — the use of German as a tool, tolerated for utilitarian purposes and not as an aspect of Alsatian identity;

@

the ignorance of those in France who thought that German had been imposed on Alsace in 1871, reinforced by those who strove to demonstrate the Celtic origins of the dialect — along with the wish of those who persuaded themselves that a potential invader would stop at a linguistic frontier to throw up an illusory Maginot

line of the French language; e@

the appearance at the level of the-written language of a linguistic

gulf between generations and the reinforcement of the role of French as a distinguishing factor and agent of social control, where its use remained hesitant and clumsy among the majority of the population for whom Alsatian remained the spoken and German the written language. The situation was well summed up

by a senator from the Lower Rhine: ‘At school, children learn

reasonably, sometimes very well, a language which they scarcely understand; at home, they go on speaking a language which they scarcely know how to read or write’. Linguistic Usage in the Administrative and Judicial Systems in Alsace

From the ancien régime to the Second Empire Under the ancien régime

The towns and local government regions of

Alsace were among the first in the Empire to switch to the use of the vernacular for the drafting of charters, following the French example

44

ETHNIC GROUPS AND LANGUAGE RIGHTS

in this matter. The Ordinance of Villers-Cotteréts of 1539 which prescribed in Articles 110 and 111 the use of French (langaige maternel francois, native French language) for ordinances and judicial verdicts

was extended in principle to Alsace by the decree of the Council of State of 30 January 1685, which likewise raised the issue of the relationship between linguistic usage and political loyalty. This decree denounced

the use of German

in ‘all sentences,

verdicts,

deeds, contracts and legal proceedings which they [the judges,

magistrates, notaries and clerks] dispatch relative to the business and disputes which the inhabitants of the said province have with one another [as being] directly contrary to the affection which the said inhabitants of Alsace show they have for His Majesty’s service.’ It prohibited its use ‘on pain of nullifying the said deeds, contracts and legal proceedings, and a fine of 500 pounds’. In his note protesting against the introduction and use of French, the Magistrate of Strasbourg emphasised that ‘the king promised the

city at its capitulation that he would maintain all its privileges,

statutes and rights: linguistic usage is a right’; that ‘the city would be obliged to dismiss almost all the notaries, procurators, advocates and councillors, as well as the majority of magistrates’; that ‘subjects’ affection does not solely consist in the language of the prince, but in loyalty and obedience’. To this the royal official charged with interpretation and implementation of the decree replied: ‘It is true that linguistic usage is a right, but it is a sovereign right which is reserved to the king [and] gentlemen do not make difficulties about

learning the language of their master’. On the subject of the 1685

decree the editor of the ordinances of Alsace has noted: ‘not widely

implemented, any more than an ordinance of the Intendant M. de la Grange, of 25 June 1685, which required the inhabitants of Alsace to

dress in the French fashion’. In the edict which established the Sovereign Council of Alsace in

1657, it was stipulated that it should be composed of ‘a President.

a councillor, being a Doctor of Laws of German

. .,

nationality, well

versed in French . . . and a German Attorney General, conversant with French, who shall have no say in the deliberations, a Clerk, six secretaries to interpret in Latin, French and German’. It was not

required of the members

of French nationality that they know

German. During the French Revolution The revolutionary period constituted a phase of intense discussion of the problems engendered by linguistic usage in the administration and the judiciary. In the Cahiers de doléances (Book of Grievances) of 1789 the complaints concerned the

fact that judges did not know the language of those appearing before them and the costs entailed by the translation of the legal documents.

LANGUAGE RIGHTS IN ALSACE, 1850-1940

45

Some demanded the translation of the civil and criminal laws, others

the use of German as a language of administration. When the départements were created on 15 January 1790 no account was taken of language in determining administrative divisions. The Constituent Assembly decided on 14 January 1790 to have laws and decrees translated into the various idioms in use in France and to have these translations sent to the regions concerned. Despite the activity of ‘translators’ and ‘interpreters’ in Paris throughout the revolutionary period, the complaints of the local authorities and the perceived necessity of making translations by their own means bear witness to the degree to which the decision of the Constituent Assembly failed to be carried out by the central authorities. It was the town clerk/interpreter of the municipality of Strasbourg who, on 6 July 1790, in the course of a vigorous condemnation of the French linguistic practice of the administration and the judiciary of the ancien régime, formulated most clearly the principles and demands relating to the linguistic issue. For him, ‘the odious [linguistic] constraint’ of the ‘judges and civil servants’ was no more than ‘the natural consequence of despotism’ which was based on ‘the stupidity of the people, the great support of the old constitution and of tyrants’. It resulted, according to Ulrich who challenged ‘the necessity for the uniformity of language’, from a distorted conception of the relationship between the civil service and the citizen: ‘Under the ancien régime things had reached a point where people had convinced themselves it would seem, that the people existed only for

the benefit of the employers’. The ‘regeneration of France’, ‘The

Rights of Man and the spirit of the constitution’ demanded respect for

the will of the majority — ‘nine out of ten of our fellow citizens want

both languages to be used in the administration of public affairs in both departments (in other words the Lower Rhine and the Upper Rhine). This meant that the usurped supremacy, ‘this kind of

aristocracy’, exercised by the French, responsible for ‘three quarters of the legal proceedings and the ruin of a large number of families’, be moderated,

since the despotism of the dominant

language ‘en-

genders civic indifference’! The ‘Magistrates and their employees [who] should be the instruments and interpreters of the wishes of those whose interests are committed to their care’ ought therefore to be required to know German in order to avoid the ‘grievous

disorders’ which resulted from the inability to communicate directly,

which no interpreter could really make up for. Ulrich implored those in power, ‘do not delude yourselves, therefore, that you will ever

extinguish German in Alsace; but I will go further, even should you

hope to succeed, you ought to forego the attempt out of sheer patriotism’. In accordance with the principles thus expressed and which were

ETHNIC GROUPS AND LANGUAGE RIGHTS

46

likewise those which had inspired the reasoning of the jurist Christoph Wilhelm Koch in his Reflections on the New Judicial Order addressed to the National Assembly of 1790 and the text by the municipality of Strasbourg, Opinion on the necessity for the judicial

officials and clerks of the province of Alsace to use and respect both languages,

French and German of September 1790, Ulrich formulated the follow-

ing proposals. ‘First, that the civil service in the two Rhine departments should use German in all documents addressed to Germans (in other words German speaking Alsatians). Second, that the records of the civil service concerning major items should be translated into German; and that the citizens should be invited by

these respective bodies to have them printed at their expense in both languages. Third, that in those cases where the administrative meetings

were

held in public, one

of the secretaries

should

be

required to explain to the public, in German, the gist of the subject of the motions and debates’. After a period of relative calm during which a number of minor measures were taken — on 7 November 1792 offices for the translation of laws, particularly into German, were set up in the Ministry of Justice — decisions aimed at standardising linguistic usage in administrative and judicial affairs were taken at several levels in 1794. On 12

April the Directory of the Lower Rhine decreed the use of French as

the official language. On 3 May the departmental administration decreed that all printing would be done in French type. On 29 June the municipal authorities of Strasbourg decreed the use of French for

all public signs. On the 20 July (2 Thermidor, Year II)

The National Assembly, having heard the report of its legislative committee, decrees: Article I— with effect from the date of publication of the present law, no official document may be written in any language other than French in any part of the territories of the Republic whatsoever. II — After the lapse of one month from the publication of the present law, no legal document of any kind, even a private agreement, may be registered if it is not written in French. III - Any civil servant or public official, any agent of the government who, with effect from the publication of the present law, draws up, writes or signs in the exercise of his functions, minutes, verdicts, contracts or any other general acts whatsoever, framed in dialects or languages other

than French, shall be brought before the police court in his place of

residence, sentenced to six months imprisonment and dismissed. IV — The same penalty shall apply to any registrar who, after the lapse of one month from the publication of the present law, registers any legal document, even a private agreement, written in a dialect or language other than French.

More or less a dead letter, the implementation of this law was

LANGUAGE RIGHTS IN ALSACE, 1850-1940

47

suspended by the law of 16 Fructidor, Year II (2 October 1794): ‘The National

Convention,

having heard the report of its legislative

committee on the difficulties which, in several communes, are hindering the execution of the law of 2 Thermidor, concerning the

requirement to write all legal documents in French, decrees that the implementation of the law of 2 Thermidor be suspended until such

time as it has received a new report on this matter from its legislative and education committees’. In daily practice (debates, minutes

of municipal and general

councils) a kind of administrative bilingualism was established, and the laws and texts to be published were generally translated, printed and disseminated in both languages, even at the height of the Terror. Translators and interpreters, whose often doubtful qualifications led to serious misunderstandings, were installed at several levels. In the

judicial sphere, the general principles had been set out by C.W. Koch. In order to avoid translation which was both costly and often inaccurate, it ‘is indispensable from now on that the legal documents

of the great majority of citizens be drawn up in the language of the country which is German, and that the public officials charged with

their drafting command a perfect knowledge of that language... . Thus the judges of all types who will be appointed in Alsace in accordance with the new judicial order must of necessity know both languages’. To pass judgement on a citizen in a language which was foreign to him was an expression of ‘the most offensive despotism; it strikes directly at the people and the most numerous class, the least well-off and the most vulnerable ofthe citizens and it leads to injustices and oppression which disgust humanity’. Koch therefore asked that ‘the knowledge of both languages, French and German, be

an essential qualification required of all the officers of justice and

clerks who will be appointed in the province of Alsace in accordance with the new judicial order, or at least that any citizen be permitted to challenge legitimately a judge who does not know the language of the

person over whose case he is called upon to preside’. Some judges were in fact dismissed and candidates turned down for inadequate knowledge of German. The text which ended the revolutionary period, taking into account

both the ideas that had arisen from the Revolution and the constraints of linguistic reality, and which attempted to take account of

the principles of individual liberty and of equality, was that of the decree of 24 Prairial, Year XI (13 June 1803) which read: Decree which fixes the term with effect from which public legal documents must be written in French in the departments of the former state of Belgium, the left bank of the Rhine and the 27 military division;

dated 24 Prairial, Year XI (13 June 1803). The Government of the

48

ETHNIC GROUPS AND LANGUAGE RIGHTS

Republic, having heard the report of the Chief Justice, Minister of Justice and Council of State,

Decrees: Article I - In one year from the publication of the present

decree, public legal documents in the departments of the former state

of Belgium, in those on the left bank of the Rhine . . . and in those others where the custom of drafting the said documents in the local language has been maintained, shall all be written in French. Il — Public officials shall nevertheless be permitted, in the regions specified in the preceding article, to write in the margin of the French records a translation in the local dialect, if they are requested so to do by the parties. III — Private legal documents may, in these departments, be written in the local dialect, it being the responsibility of the parties who present legal documents of this type for registration to attach, at their expense, a French translation of the said documents certified by an authorised translator.

From the First to the Second Empire The decree of 1803 remained in force until the annexation of Alsace by Germany and was taken into consideration by the German government as the legal basis for its own regulations between 1871 and 1914. Until 1870 the civil service and the judiciary used French as much as they could. The acts of the

administrative authorities were brought to the attention of the public

by the use of posters or leaflets printed in both languages. The abandonment of German by the prefect of Colmar for several months in 1815 earned him a rebuke from the Minister of the Interior. Although entry to the civil service required a knowledge of French,

the posts of mayor and local police officer did not assume it. In 1807,

the Sub-Prefect of Sélestat reminded the mayors of his arrondissement that the majority of tax-collectors were drawing up the accounts of the communes in German, contrary to the provisions of the decree of 24 Prairial, Year XI. In 1826 the rector of Strasbourg noted that the majority of employees were unable to take the oath in French and that the same was true for three-quarters of the Mayors. In the small rural communes the minutes of the debates of the Municipal Council continued to be drafted in German. In the larger population centres the transition to French was made gradually, frequently with a transitional phase when both languages were used. The recruitment of magistrates for the judicial hierarchy nationally as well as the appointment by the central authorities of civil servants

of upper and middle rank led to many individuals who knew no German or dialect at all occupying posts in Alsace, which sometimes led to complaints from the local population. There were two opposing views on this subject: that expressed notably by V. Rossée, an Alsatian by birth, appointed Public Prosecutor in the Court of

Appeal of Colmar in 1830, who proposed that only judges with a

LANGUAGE RIGHTS IN ALSACE, 1850-1940

49

command of German be appointed in Alsace, and that of one of his successors who expressed regret in 1853 at the appointment of too many civil servants and magistrates who were natives of the province. This practice slowed down the process of introducing French, in his opinion, an opinion shared by other senior civil servants who were impatient at the slow pace of linguistic development. He proposed in contrast the nomination of Alsatians ‘in the French interior’ to accelerate their integration, the suppression of translations of official legal documents and those of notaries and solicitors, and a return to the provisions of the decree of 2 Thermidor, Year II.

It was at the point where the development of the state’s adminis-

trative apparatus had attained a level that made it possible to exercise an effective and permanent hold over the population as a whole in all its diverse activities and where education was passing gradually from the responsibility of the Churches into the control of the state, which from now on possessed considerable and lasting means to influence individual linguistic behaviour, that Alsace escaped from the political orbit of France. The German Period from 1870 to 1918 Here the term ‘Alsace—Lorraine’, which was not used officially by the French state, refers to the Reichsland ‘Elsa8—Lothringen’ formed, after

the annexation of 1871, by the departments of Lower and Upper Rhine (with the exception of a part of the arrondissement of Belfort),

parts of the departments of Moselle and of Meurthe and the cantons of Saales and Schirmeck (department of Vosges). In none of the departments involved in the annexation did the new borders coincide with the linguistic border between Germanic and Romance languages. The Administrative Sphere

Even before the end of the war and the

Treaty of Frankfurt sanctioning the annexation,

German,

hitherto

only a tolerated language, became the de facto official language, while the former official language, French, acquired the status of ‘foreign language’, tolerated in certain specific situations. Attention should be drawn in the first place to the multiplicity of surveys which were carried out, often in conditions of great secrecy, in order to underpin the administrative measures aimed at the extension of the use of German, as well as the support of enterprises more or less scientific in character which had the same aims. The first surveys (see above) divided the communes into three areas: German speaking; French

speaking; mixed; certain communes in the last category were gradually integrated, sometimes in an arbitrary fashion, into the first. There were numerous protests against this de facto introduction of

50

ETHNIC GROUPS AND LANGUAGE

RIGHTS

German as the official language, often arising from specific circum-

stances of inability to meet the requirements: many local government

offices were simply unable to draft daily correspondence in German and even less able to produce technical reports, Alsatian students

having gradually turned away from the German universities after

1850. The authorities in fact noted this deficiency and several mayors

threatened to resign. The assembly of mayors at Strasbourg requested on 6 April 1871 ‘the optional use of both languages in

notarial deeds and deliberating assemblies, for as long a period as possible. Education acquired by long study is a possession which should be respected’. But Governor General von Bismarck-Bohlen

showed the drift of German intentions when he informed the population that only those petitions, letters and supplications written in German would be considered by the authorities.

The legal basis was established by the law concerning the official language of 31 March 1872 (Gesetz, betreffend die amtliche Geschiftssprache): Article 1: All decrees, acts and written decisions proceeding from the

authorities or officials of the imperial administration, as well as the records and declarations made before those authorities or officials,

shall be drafted in German. Article 2: Private legal documents drafted in French which are presented for registration and which bear a date later than July 1872 or which are undated, shall be accompanied by a German translation, at

the cost of the parties, certified by an authorised translator. This translation shall not be subject to any stamp or registration duty. Article 3: The debates in the district and imperial councils shall take place in German. If the debates take place in the presence or with the participation of persons who do not understand German, the president may order the debates to be conducted in French, if all those taking part understand it. If this is not the case, the appointment of an interpreter should be ordered. Recourse to this means should also be had for the translation of written material drafted in the foreign language. The provision of Article 14 of the law of 14 July 1871 on the changes to the judicial structure authorising solicitors and advocates with full powers currently in practice to use French shall also apply, for the period indicated, to the debates mentioned above.

Article 4: The provisions of Article 1 shall also apply to the reports, decrees, acts, decisions and records proceeding from the authorities or officials of the communes,

the cultural administrations and found-

ations. Article 5: The above provisions shall come into force on 1 July 1872. In the areas where the French speaking population predominates, a French translation may, even after this date, be appended to public notices and to general decrees intended for publication, proceeding from the authorities of the imperial civil service. Likewise, the

LANGUAGE

RIGHTS IN ALSACE,

1850-1940

51

implementation of Articles 2 and 4 in the localities where the French speaking population predominates and that of Article 1 in respect of certain categories of lower ranked employees may be deferred to a date later than 1 July 1872. The extent and length of these exceptions shall be determined by the Upper President. Article 6: The decree of 24 Prairial, Year XI is repealed.

The provisions of Article 5 were regulated by a decree of the Upper President of 21 June 1872 (Verordnung, betr. die amtliche Geschéftssprache) who provisionally deferred the term for the implementation of Articles 2 and 4 of the law to 1 January 1878, for a group of predominantly French speaking communes; lower civil servants in the departments of police, forestry, building works and direct and indirect taxation were exempted from the obligations under Article 1 until this date and in these areas. In these same communes public notices and decrees of the imperial administrative authorities were to be accompanied by a French translation. In Upper Alsace the central civil service sent the handwritten French translation of its orders to the communes concerned. In Lower Alsace the official papers of the two arrondissements that contained the French speaking communes,

the Nouvelles Alsaciennes (Sélestat) and the Journal de Molsheim supplied a French translation of official communications after the German text. The introduction of this law provoked some disturbance, accord-

ing to the Bezirkstag (district council) of- Lower Alsace, which led that assembly to request that it be implemented

with prudence and

circumspection. In December 1872 one commune in Lower Alsace

and two in Upper Alsace lost the benefit of the provisions of 1872. A decree from the Ministry for Alsace—Lorraine of 21 February 1882 extended the exemptions permitted under the law of 31 March 1872 beyond 1 January 1883 and until it was superseded by a subsequent regulation but without indication of the time limit. In order to avoid

large scale protest the central administration

thus avoided the

announcement of general measures or an overall revision of the list of communes, preferring the tactic of individual regulations. On 20

February 1889 a decree was published on the official language which

was to come into force on 1 January 1890. The circular sent out on the day the decree was promulgated set out the principles that underlay

the new regulations. The accepted criterion was no longer whether or not the population used German but whether or not it was feasible for the municipal administration to use German. This circular, like that

of 29 August 1890, considered the possibility of influencing the outcome of municipal elections to achieve this aim (in other words the election of Councillors and Mayors who knew German) and was

ETHNIC GROUPS AND LANGUAGE RIGHTS

52

Table 3.4: Changes in the number of communes exempt from using German as the official language, 1872-1892

1872

1878

1890

1892

Lower Alsace

ZT

26

26

21

Upper Alsace

24

22

19

2

accompanied by the pensioning off of schoolmaster-clerks (town clerks) unable to assist the Mayor with German. While the laws on the press and on public gatherings showed a

certain degree of tolerance with regard to French, other provisions proved to be more restrictive or fussy. In 1877 the Upper President

forbade the use of some bilingual forms in Strasbourg, whereas the

tax forms were drafted in both languages. Award of tenders was refused to those contractors who did not conform to the linguistic requirements of the authorities. In French speaking areas, notaries were required to publish their notices in both languages in French newspapers, whereas the management of the forestry commission, the recruiting office and the Public Prosecutor advertised in French only. The Linguistic Usage of Representative Bodies In 1874-5 the Landesausschuss (Provincial Committee) of Alsace—Lorraine imposed on itself the following regulation concerning linguistic use: The secretaries draft brief minutes of each meeting in German and read these out at the subsequent meeting with the French translation. In addition, a detailed official report is drawn up in both languages, by writers appointed by the secretaries and under their direction (Chapter III, article 6). - The agenda is determined by the President and posted in both languages 24 hours before each meeting (Chapter III, article 9). — Bills and general regulations are printed and distributed to each member in both languages (Chapter V, article 16). — The same procedure is followed for the reports of the Landesausschuss (Chapter V, article 19).

In fact the work in committee of the Landesausschuss and its debates took place in French for the most part. On 23 May 1881 an imperial law was passed by the Reichstag (imperial parliament) — despite the

protests of Alsatian deputies who pointed to the lack of knowledge of German of members of the Landesausschuss — which stipulated that the debates of the Landesausschuss were to be in public and in German. Those members who did not know German might read _their speeches translated in that language. Several motions, proposed amendments and supplications aiming to reintroduce French as a

LANGUAGE RIGHTS IN ALSACE, 1850-1940

53

language of debate were rejected. It should be noted that Deputy Teutsch (Saverne) had tried in vain in 1874 to have it accepted that deputies from Alsace—Lorraine who did not know German might use French in the Reichstag. For the regional councils (Bezirkstage) and arrondissement councils (Kreistage) regulations were implemented that provided for extensions of the time limit similar to those concerning the law on the official language. Thus the arrondissement councils of Molsheim, Sélestat, Ribeauville and Altkirch produced their legal documents

and minutes in both languages and the civil servants presented their

bills to them accompanied by a French translation. These provisions

were repealed in 1888. For the municipal councils the process was

more complicated. In Strasbourg the minutes were drafted in French until 1872. After three months of drafting in both languages, and after the dismissal of the mayor, German only was used from 19 April

1873.

The Constitutional law of 1911

-

The Constitutional law of 31 May 1911

which granted an important degree of autonomy to Alsace—Lorraine, at the same time deprived the Diet (Landtag), which was to be set up, of the power to regulate linguistic usage, which was a matter for the Reichstag, and was determined by Imperial law (Reichsgesetz). The electoral law of 31 May 1911 stipulated that the official language of the debates in the Landtag was to be German and repealed the provisions of the law of 23 May 1881. The constitutional law stipulated in article

2826: The official language employed by the government and by public bodies as well as the language of instruction in schools is German. In those parts of the country where the majority of the population speaks French, exceptions in favour of the use of French may be permitted, in accordance with the law on the official language of 31st. March 1872

bash):

The linguistic issue was one of the reasons which prevented Alsace—

Lorraine from gaining the same degree of autonomy as the other federal states of the Empire. The Provisions Concerning Proper Names, Place Names, Signs and Inscriptions These provisions, which may seem of minor concern in

comparison with those dealt with above, were none

the less

important, to the extent that they concerned the daily life of the population and it was through them that the policies of the government were felt. Their implementation allowed for greater local

initiative on the part of civil servants, whose linguistic competence

54

ETHNIC GROUPS AND LANGUAGE RIGHTS

was often doubtful, and who showed in some cases an excessive zeal,

in others leniency. By an ordinance of the Bundesrat of 22 June 1875 it

was stipulated that in the German speaking areas of Alsace—Lorraine

the civil registers were to be kept in German. A circular from the public prosecutor of Colmar ordered all registrars to refuse French forenames. Thus forenames such as ‘Henri’, ‘Louis’ or ‘Marie’ were

challenged or germanised, despite the fact that they were common in the rest of the Reich. Neutral-sounding forenames such as ‘Paul’ were latinised (Paulus). From 1 January 1892 a new regulation

strengthened the use of German, being based, notably, on the law of 11 Germinal, Year XI, which permitted only classical names or those

of the calendar (that is, saints’ names). Instructions dated 2December specified that it was the German part of these forenames that was to be registered. These were confirmed by the Ministerial circular of 17

January 1906 which did however permit foreign forms in the absence

of a corresponding German form generally recognised and widely used. Companies and societies had to take German names (two names in French speaking areas). This provision was often evaded by the use of Latin or neutral names (‘union’). For commercial and other signs, permission was generally granted orally without formalities,

but that for French signs had to be sought on stamped paper and

ought, as a general rule and in accordance with the spirit of the law of 31 March 1872, to have been refused. Punctilious junior authorities

questioned French labels in a chemist’s or required the replacement of ‘coiffeur’ by ‘Friseur’! Proceedings were taken against offenders. The requirement to use German was extended to the details of daily life (notices in the personal columns, visiting cards, letterheads, notices announcing the village fair, pay slips and . . . labels on beer

bottles). In 1887 the Under-Secretary of State for Justice and Religion,

noting the multiplicity of epitaphs in French, weighed up the respect due to the dead against the challenge of the living to the German authorities! In relation to place names, germanisation was carried out by means

of a return to an older form of spelling, by a partial adaptation to the new German spelling (Seltz — Selz, -dorff — -dorf), by a high German pronunciation (-willer, -wihr — -weiler, -weier). The French part of mixed composite names (Vieux-, Neuf-, -le Haut, -le Bas, les

Bains) was germanised (Alt-, Neu-, Ober-, Unter-, Bad-).

Linguistic Regulations in the Judicial Sphere

In the law of 14 July 1871

concerning the alteration of the organisation of the judiciary (Gesetz, betreffend Abinderung der Gerichtsverfassung) the provisions of arts. 10-15 were concerned with language. They stipulated that the

language used during the hearings, in the official correspondence of the courts, of the state prosecutor's office, of notaries, for the legal

LANGUAGE

RIGHTS IN ALSACE, 1850-1940

55

documents of solicitors, barristers and bailiffs was to be German. If

some of those concerned did not have a command of German, then

an interpreter could be called on and documents in foreign languages

could be translated. Hearings could take place in French before the

commercial courts and those of Justices of the Peace and the police, if

all the parties present knew French and not German. A French translation of verdicts given in German could be produced at the request of the parties and at their expense. For a period of three years,

notarial deeds could be drafted in German and French if the parties appearing knew German but the notary did not. For the same period and under the same circumstances the proceedings could take place

in French only and without an interpreter. After this time and for parties appearing before the court who knew German, that language only would be accepted and notaries would be required to know German. For parties appearing who knew only French, both languages were accepted. For a period of three years, solicitors and barristers already serving were authorised to use French for business coming under the jurisdiction of the assize court and civil cases under

the jurisdiction of the higher and appeal courts. Until further notice, the prerogative of proceedings and verdicts in French continued to be accepted in the magistrates’ courts of Schirmeck and La Poutroye (Lapoutroie). A linguistic border in judicial matters, different from that for the civil service, was established and certain specific provisions were

repealed by the ordinance of 29 June 1887. The period allowed to

solicitors to learn German was extended by ordinance in 1874. Apart

from one or two minor regulations — a ministerial circular of 23

January 1888 forbade judicial authorities to receive petitions in French from individuals who knew German - the provisions of 1871 remained in force until the law of 12 June 1889 on the official language of the judicial authorities in Alsace-Lorraine (Gesetz, betreffend die

Geschaftssprache der gerichtlichen Behérden in Elsaf-Lothringen). In the preamble to this law which repealed the provisions of arts. 1015 of the law of 14 July 1871, it was stated that the linguistic exceptions still in force were no longer necessary. The language for notarial

documents was to be German. If the parties appearing before the court or witnesses did not know German, then an interpreter could

be called on. If all those present knew the foreign language, the notary could, with their agreement, forego recourse to an interpreter.

On the request of one of the parties, a written translation should be produced and be certified as accurate by the interpreter before the deed was read out. It was to be appended to the deed and the note of this appendix should be signed by the parties present. A copy of the translation could be handed to the parties on request. The provisions of article 972 of the (French) Civil Code on the choice of language for

56

ETHNIC GROUPS AND LANGUAGE RIGHTS

the drafting of a Will remained in force. The statements and extracts necessary for the registration or transfer of a mortgage were to be drafted in German. Documents in foreign languages were to be accompanied by a translation produced and certified as accurate by an authorised translator, these documents additional stamp and registration duty.

not to be subject to

The Ministerial ordinance of 22 June 1889 provided for in art. 6 of the law (Verfiigung des Ministeriums tiber die Ausfiihrung des §6 des Gesetzes, betr. die Geschiiftssprache der gerichtlichen Behdrden in ElsafsLothringen, vom 12. Juni 1889) retained French for the publications of the courts, notaries and bailiffs for the communes exempt from the use of the official language, German. The rights of French speaking persons appearing before the courts continued to be guaranteed by §187 (use of interpreters) of the law on the judicial structure.

The War Period (1914-1918)

During the war the military authorities

frequently imposed rigorous measures which the civilian authorities sometimes sought to ease, particularly when they considered them impossible to implement. On 31 December 1914 the decision was taken to introduce German, with effect from 15 January 1915 in the eight communes of Lower Alsace and one commune of Upper Alsace

that had benefited up to then from the retention of French. This measure was made general in 1917. In 1915 almost all of the communes that had retained a French pronunciation or element in

their name were renamed. The introduction of new names formed by translation, analogy or assonance

was later extended to hamlets,

dependent lands, localities, rivers etc. and gave rise to numerous absurdities. On 31 December 1914 particularly rigorous measures were taken on the issue of signs and inscriptions, which did not spare epitaphs or graves. On local initiative, sermons in French in one

French speaking commune were prohibited in 1916. Following a warning in 1914, the use of French in public, regarded as a display of anti-German feeling, was prohibited in 1915 and sentences were handed out. These repressive measures were to erase the memory, in the minds of a sector of the population, of the relative tolerance of German linguistic policy, which, although strict in principle, had arranged for long transitional periods in some areas. The Period from 1918 to 1939

The return of Alsace to France created a double problem for the staff

and the functioning of the civil service and the judiciary: a linguistic problem resulting from the re-establishment of French as the official

LANGUAGE RIGHTS IN ALSACE, 1850-1940

57

language and a problem of technical competence in judicial and administrative matters, created by the introduction of French legislation and the retention, in the form of local rights, of certain aspects

of the law in force up to 1918. The appointment or retention of civil servants who had only a partial understanding of these problems, the difficulties created by their working together and relationship with the population perpetuated a sense of discontent which only very

gradually abated. Many civil servants who had a grasp of local legislation, but knew only German (or insufficient French) found themselves again faced with superiors in the hierarchy — whose posts had previously been held by German immigrants who had now left Alsace or been expelled — poorly acquainted with local affairs but knowing French. It was only at the beginning, and solely for the purposes of integration into the French civil service of former civil servants of the Reich and Land, and above all for junior posts, that

some of the linguistic requirements were waived. Indeed, the influx of a considerable number of civil servants from the interior, who

sometimes

showed great linguistic arrogance, the serious career

difficulties for civil servants of local origin, the (linguistic) obstacle at the competitive entry examinations, the real or imagined discrimination for inadequate linguistic ability and differences of status were at the root of many problems. In the judicial sphere, in order to reconstruct the service after 1918,

a call was made on magistrates from the general corps of the French magistracy (metropolitan and colonial), on Alsatian jurists, barristers or former magistrates, trained according to the pre-1918 regulations,

and to French jurists not belonging to the magistracy, that is, on quite disparate groups subject to a variety of regulations in respect of terms of tenure, salary, promotion and disciplinary code. The Administrative Sphere

France reintroduced French as the official language in the recovered territories of Alsace, having already done so in that part of the

territory controlled at the beginning of the war. Initially issued exclusively in French, the instructions and directives of an adminis-

trative nature were, in view of the difficulties of implementation,

along with public notices, drafted in both languages. Administrative correspondence was, however, conducted in French, which often

gave the town clerk — who was frequently the local schoolmaster — a

role of considerable importance in the management of municipal affairs, since he compensated for the linguistic deficiencies of some mayors. In the Bulletin officiel d’Alsace et de Lorraine the laws and decrees were set out in parallel columns for French and German from May 1919. At the lower levels of the civil service, especially, dialect

58

ETHNIC GROUPS AND LANGUAGE

RIGHTS

retained an important place in communication between civil servants and the public. Whilst the departmental assemblies conducted their debates in French, there were many municipal councils which continued to use dialect for their debates, contenting themselves with drafting their minutes

in French.

A

law

of 14 May

1930

repealed,

for the

departments of Lower and Upper Rhine and of Moselle,

the

provisions of article 48 of the law on local government of 6 June 1895

which had allowed debates in a language other than the national language (that is French during the period of annexation and German

or dialect after 1918). This law which introduced into Alsace the

provisions of articles 54 and 56 of the municipal law of 5 April 1884 did not put to an end the long-standing practice of numerous municipal

councils. The protests provoked by the declaration of the President of the Council, Edouard

Herriot, indicating his intention to introduce

into Alsace and Lorraine ‘the whole body of republican legislation’ were above all aroused by the fear that the concordat would be suppressed, rather than by linguistic issues. An extremely delicate question, the source of numerous contro-

versies and of a strong feeling of injustice, was

that of ‘the

compensatory indemnity for the difficulties arising from the use of two languages and the special system’, granted to civil servants with effect from 1 January 1923 for a period of five years (law of 22 July 1923 concerning the status of civil servants in Alsace and Lorraine). In accordance with an asymmetry that could only be justified in terms of the objective of language standardisation — did the time limit of five

years essentially take account of financial considerations or was it really believed that all the differences could be smoothed away in five

years? — this indemnity was eight per cent of salary for the civil servants governed by local provisions and 16 per cent for the others; the two categories were however faced with equally serious difficult-

ies, even if of a different nature. The indemnities were subsequently equalised and reduced to 12 per cent of salary in 1934. Civil Registration, Inscriptions, the Press and Miscellaneous Provisions

The provisions concerning civil registrations which required the

registration of patronymics ‘in French’ were rarely followed, those concerning forenames were not a problem, since they corresponded to the practice, traditional in Alsace, of registering forenames in the French form, whilst using the dialect or German form in convers-

ation. The adoption of French for public inscriptions, names of companies, signs and hoardings of all kinds often took place spontaneously, although this did not prevent people retaining the German sign alongside the French one. The municipal and regional

LANGUAGE RIGHTS IN ALSACE, 1850-1940

ee)

civil service vied with one another in translating the names of communes, streets and localities; in order to do away with the ‘German’ character of a name, the expedient of adapting the name, more or less successfully, to local pronunciation was often resorted to. Many official forms were bilingual; notices of auction from notaries or bailiffs were sometimes even published in German only. Throughout the period 1918-39 the publication of German newspapers took place without hindrance, if exception is made for the use in 1927 by decree of the provisions of the law of 22 July 1895 (applying to newspapers published in France in foreign languages, those of art. 14 of 29 July 1881 on foreign newspapers and periodicals) to prohibit three publications supporting autonomy. Language of the Judiciary By decree of the President of the Council of 2 February 1919 (J.O. 5.2.1919), French was declared the language of the judiciary in Alsace and Lorraine. It stipulated: Art. I: In Alsace and Lorraine the language of the judiciary is French, in which the procedure should be drafted, the speeches of counsel, the

verdicts, orders and judgements are to be pronounced, both before the higher courts and the district courts. The proceedings may take place in dialect or German, but only on the decision of the magistrate presiding over the hearings, when all those persons taking part declare that they know dialect or German and do not have sufficient command

of French.

Before all other courts, departures from the above rules may agreed to by order of the president of the district court, granted application from the government commissioner at that court. Art. II: All notarial deeds must be drafted in French unless all parties declare that they do not know and expressly require that deed be drafted in German. (. . .)

be on the the

An executive decree of the President of France of 15 May 1922 which determined ‘the meaning of article 2 of the decree of 2.2.1919’ drew its conclusions from the difficulties of interpretation and implementation of these texts which had been set out in a detailed report by the Minister for the Liberated Areas, temporarily assigned by the Minister of Justice to the President. In this it was said that the staff in

notaries’

offices, not having a good command

of French

‘had

naturally tended to continue to use German, with which they were more familiar’. Moreover,

legal scruples had led Alsatian lawyers

‘accustomed to a method of strict interpretation of the texts’ to wonder to what extent a decree could ‘abrogate provisions as definite’ as those imposing ‘in imperative terms’ the use of German

60

ETHNIC GROUPS AND LANGUAGE RIGHTS

(art. 2240 of the German Code (B.G.B.) and law of 17 May 1898). Not

recognising the full significance of the ‘reinstatement of the recovered territories within a unified France’, they had continued to draft numerous legal documents in German, without ‘having determined

whether it was expressly required by the parties concerned’. A judgement of the court of Colmar (23 June 1921), which had hada

nullity action referred to it on account of a legal flaw, the consequence of which was ‘the invalidity of numerous legal documents such as wills, mortgage agreements etc.’ aroused strong feelings. A second judgement from the same court (11 January 1922), reminding notaries

of their ‘professional obligations’ under penalty of ‘disciplinary sanctions’, did not however intend that ‘the interested parties should

be wronged as a result’. In order to put an end to the uncertainties of the variations of jurisprudence, an ‘official interpretation of the disputed text’ was proposed, along the lines of the second judgement. Whilst making French the official language of the judicial services, the decree of 2 February, 1919 sought ‘at the same time to respect the customs of the population by leaving open the option of using German, if none of the parties knew French and all demanded the use of German’. In order to justify this position, a distinction was made between judicial and notarial documents: (. . .) the requirement to use the national language in judicial documents has its origin in the judicial structure and constitutes a principle of public order prescribed on pain of nullity (. . .), in prescribing for notaries the use of French in the drafting of their legal documents, the

law does not seek to enforce that measure by decreeing the nullity of legal documents drafted in a foreign language, in order to avoid a penal System (..4 .):

The urgent nature of the bill justified the use of the executive decree procedure, which stipulated: Article 1 Notarial deeds drawn decree of February 1919, making in Alsace and Lorraine, may not provisions of article 2 of the said

up since the coming into force of the French the language of the judiciary be cancelled on the grounds that the decree have not been observed.

Article 2 In the future, all notaries who contravene the provisions of

art. 2 of the decree of 2 February 1919 shall be liable to disciplinary

penalties.

Article 3 The present executive decree shall be submitted for the ratification of Parliament within one month. (. . .)

After ratification by Parliament, the law promulgated by the

LANGUAGE RIGHTS IN ALSACE, 1850-1940

President of France on 29 March stipulated:

1928 (J.O. of 30 March

61

1928)

Article1 The documents of the proceedings, the verdicts, orders and judgements both of the higher court of Colmar and of the district and bailiffs’ courts of the departments of Upper and Lower Rhine and of the Moselle, may not be cancelled on the grounds that the provisions of article 1 of the decree of 2 February 1919, making French the language of the judiciary in Alsace and Lorraine, have not been observed, unless those documents, verdicts, orders and judgements date from three

months after the promulgation of the present law. Article2 The order authorising the use of a given foreign language, in conformity with article 1 para. 2 of the said decree shall either be appended to the judicial document or be authorised in its text when it is officially published. (. . .)

Before collegiate courts German and dialect could therefore be permitted on the decision of the presiding magistrate and with the

agreement of the parties concerned, if they stated that they knew these languages (and had insufficient knowledge of French). Supplementary measures of a general nature could be taken for the cantonal courts by the president of the court of first instance. The choice of jurors in the assize court was considerably restricted by the requirement to know French and the progress of the hearings was complicated by the need to have recourse to an interpreter, when the jurors were not ina position to follow the statements of the accused or the witnesses in dialect or German. In 1927, certain measures were

taken to facilitate the progress of hearings. The decree of 9 February 1931 (J.O. 11 February 1931) of the Minister of Justice laid down ‘as far as possible’ the use of bilingual forms for the ‘notification of documents and papers’ produced by the

clerks of the Court of Appeal and the courts under the jurisdiction of

the Court of Appeal of Colmar. Those appearing before the court could also, in the cases where the use of bilingual forms was not possible, ‘apply to the clerks of the competent tribunal or the cantonal court of their place of residence in order to have the contents briefly explained to them in German or dialect’. It was also possible for them ‘with the authorisation of the president of the court or of the competent tribunal and at their expense (to) have issued to them by the clerk or from wherever the legal document or paper was produced, a full translation or extract’. Art. 1 also stipulated that ‘the summonses to witnesses in civil cases and defendants before the criminal courts,

addressed

to a person resident in the district

designated by the order laid down in paragraph 1, shall be accompanied by a translation issued without cost’. Art. 2 stipulated that

62

ETHNIC GROUPS AND LANGUAGE RIGHTS

those appearing before the court without representation by a lawyer

could request ‘without cost a translation in German of the pro-

nouncements of the verdicts and decisions in the case concerning

them’. The document of notification, the summons to appear and the

fixing of the date of the hearing should be bilingual. Oral explanations in dialect or in German of the contents of these notices, as well as a full translation or extract could be obtained under the same conditions as those of Art. 1. Article 4 stipulated ‘Translations made in accordance with the present decree have no validity as official documents’. The fact that these provisions were made for ten years, however, demonstrates the precariousness of the existence that was accorded

to German in this sphere. On 21 October 1931 an order was made allowing indemnities to civil servants in the judicial administration

charged with the tasks of interpreter and translator within the jurisdiction of the Court of Appeal of Colmar (J.O. 27 October 1931). A verdict of 27 March 1931 is revealing in little of the limits and

problems of translation: ‘A summons issued for defamation and

abuse may not be declared null and void in Alsace and Lorraine because the incriminating terms, having been couched in Alsatian dialect, have been reproduced in the summons in dialect and not in French’. Conclusions

The linguistic policy of the State in the administrative and judicial spheres between 1850 and 1939 was characterised by measures

imposing French, German and then French again, tempered by concessions taking account of the linguistic situation on the ground: these compromises accorded a limited place to German, the standard form corresponding to Alsatian dialect at the written level and to that dialect at the oral level before 1870 and after 1918; between 1870 and

1918 concessions were made to French for the benefit of the French speaking or bilingual communes, but were refused to the French language elsewhere, apart from periods of transition, and this despite the wishes expressed by the population or their elected representatives. The French authorities in other communes did not accord an adequate place to the written language of culture corresponding to the vernacular language of the Alsatians. The German authorities did not accede to repeated requests for a greater réle for

French. In the name of the priority granted to the official language,

which during the period of annexation corresponded to the native language, and taking only slight account of the requests and protests of the population in favour of long-standing or acquired circum-

LANGUAGE RIGHTS IN ALSACE, 1850-1940

63

stances, the French and German authorities practised a policy of

linguistic standardisation and assimilation, of which the civil service

became, with its growing hold over daily life, a favoured instrument. The various time limits and successive reprieves granted, which

characterise certain measures bear clear witness to the wish of the

State to achieve a stage of standardisation that would render these

exceptional provisions unnecessary, as well as the absence of recognition and of a firm judicial basis for rights guaranteed to the

minority. Despite the lack of conformity in many spheres between the laws in force and the effective practice, the linguistic legislation caused a serious nuisance to a fairly large section of the population of Alsace in the exercise of its rights, and this situation could go as far as fairly damaging kinds of exclusion from certain spheres of public life. Bibliography Lévy, Paul (1929), Histoire linguistique d’Alsace et de Lorraine 2 vols, Les Belles Lettres: Paris. Rossé J., M. Stiirmel, A. Bleicher, F. Deiber andJ.Keppi (eds) (1936, 1938), Das Elsass von 1870-1932, Bd.3, Geschichte der kulturellen und religidsen Entwicklung. Bd.4, Karten, Graphiken,

Tabellen,

Dokumente,

Sach- und Namenregister:

Colmar

Alsatia. Encyclopédie de |’Alsace (1982 seq.): Strasbourg. Nouveau Dictionnaire de biographie alsacienne, édité per la Fédération des Sociétés d’histoire et d’Archéologie d’Alsace, Strasbourg 1983 seq. Wolfram, Georg (ed.) (1931-6), Das Reichsland Elsafs-Lothringen 3 vols, Frankfurt/M. Harmsen, H. (1936) ‘Elsa und Lothringen’, III. Bevélkerung. 4. Sprachenstatistik, in Carl Petersen, Paul Hermann Ruth, Otto Scheel and Hans Schwalm (eds) Handwéorterbuch des Grenz- und Auslanddeutschtums, Breslau. Hartweg, Frédéric (1985), ‘Die Entwicklung des Verhaltnisses von Mundart, deutscher und franzdsischer Standardsprache im Elsaf& seit dem 16. Jahrhundert’, in W. Besch, O. Reichmann, S. Sonderegger (eds), Sprachgeschichte, Ein Handbuch

zur Geschichte der deutschen Sprache und ihrer Erforschung. 2. Halbbd., Berlin, New York. Ministére de la Guerre (1918), Etat-Major Général (2e Bureau): Organisation politique et administrative et législation de l’Alsace-Lorraine. 2e partie Textes législatifs traduits et annotés, T.1, Imprimerie Nationale: Paris.

Bulletin officiel d’Alsace et de Lorraine (1919 seq.): Strasbourg. Répertoire pratique de Droit et de Jurisprudence d’Alsace et Lorraine (1925), Lois Civiles — Lois Commerciales — Lois Pénales — Organisation Administrative et Fiscale, J.P. Niboyet: Paris. Regula, Jules, et al. (1938), Le droit applicable en Alsace et en Lorraine (Recueil — Index des textes législatifs et réglementaires), Dalloz: Paris.

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4

The Catalan Language in the Conflict between Centralism and Autonomy, 1850-1940 ANTONI MILIAN I MASSANA

Introduction

This study of the legal regulation of the use of Catalan in the public and judicial administration in Catalonia from 1850 to 1940 must be prefaced by clarification of a number of points. Firstly, we wish to point out that this study is confined to the use of Catalan in Catalonia, despite the fact that the language is spoken in three other geographical regions of the Spanish state, namely Valencia, the Balearic Islands and the eastern marches of Aragon. This limitation is accounted for by the fact that, although all Catalan speaking areas form a homogeneous linguistic community, Catalonia itself constitutes a distinct national entity of its own within the Spanish state. In addition, this geographical limitation is justified because, of all the various areas where Catalan is spoken, Catalonia was the only community to set itself up as an autonomous region during the short-lived Second Republic, the only occasion — as we shall see — when Catalan enjoyed effective legal recognition.’ Secondly, it has to be remembered that within the Spanish state Catalans are in a minority. Thus, although spoken by the majority within Catalonia, in relation to Castilian in the state as a whole

Catalan is a minority language. In fact during the period under study — 1850 to 1940 — the Catalans were a true minority in the technical sense of the term.’ At all events they represent not only a linguistic minority but also, in practice, an authentic national minority. This is

the case because the Catalans are neither an ethnic minority resulting from the settlement of population as a consequence of migration nor an ethnic minority deriving from annexation or a shift in frontiers

after a war. Catalonia continues to exist as a national reality. This means that the Catalans emerge as a national minority as a result of 65

66

ETHNIC GROUPS AND LANGUAGE RIGHTS

their resistance to policies of assimilation initiated by the Spanish monarchs in the eighteenth century in their concern to unify their

kingdom and subsequently pursued in order to transform Spain into

a nation-state. The fact that Catalonia did not succumb to assimi-

lation lay at the origin of the tug-of-war between nation-state and

pluri-national state which was increasingly to mark the latter half of the nineteenth century.

It is this reality of Catalonia in a national sense which explains why

the thrust of Catalan demands, in reaction to the Castilian policy of assimilation, was more a claim for ways and means of allowing the expression of the group’s national traits and, ultimately, of managing

those matters of public business of more direct concern to it than a

calling for specific rights to protect indMidual members of the minority. For this group the legal means of protection adopted during the single brief period (1931-9) during which Catalan reality was acknowledged as existing in its own right consisted in endowing Catalonia with a body — the Generalitat — (Catalan autonomous governmental body) as an autonomous political instrument for the governance of its own interests, as opposed to conferring by law the benefit of specific rights for their exclusive enjoyment upon the

members of the minority.°

Thirdly, it should be recalled that Catalonia comprises the territory of the provinces of Barcelona, Girona, Lleida and Tarragona. The division of the whole of Spanish territory into provinces, based on the

French pattern of départements, was introduced in 1833. Subse-

quently, including the period under study, Catalonia was given legal recognition only twice. During the first period (1914 to 1925) when the government authorised the setting up of the Mancomunitat (Regional Administrative Body), Catalonia was recognised merely as a regional entity for the provision of administrative services. During the second period (1931 to 1939) it enjoyed recognition as a territorial entity endowed with political autonomy. To conclude these preliminary remarks, it should be explained that this study is divided chronologically into three sections according to the type of recognition that was given to Catalan identity. The first section deals with the period from 1850 to 1930 during which Catalan identity had no official recognition and during which the state sought its assimilation. In this respect the section lays stress on the banning

and the prosecution of the use of Catalan in public activities and any official business. In the second section we look at the period from 1931 to 1939. It was during this period that Catalonia set itself up as an autonomous region endowed with a statute enabling it to enjoy a

broad measure of political autonomy. As a result of its ensuing withdrawal from the marginal position to which Catalan had been relegated it then went on to acquire, within the territory of Catalonia,

THE CATALAN LANGUAGE

67

the status of an official language alongside Castilian. The fact that an

equal amount of space is devoted to these two sections should not lead the reader to overlook the considerable distance in time span

between them: 80 years in the first case and only nine in the second. This throws into sharp relief the brevity of the period during which the Catalan language enjoyed a degree of recognition.

Finally, in the third section covering the fleeting period from 1939 to 1940, we wish to show that with the new totalitarian type of

political system that took over in Spain after putting a violent end to the lawfully established Republican regime in the Civil War of 1936-9 there grew up a highly centralised unitary political system pursuing a policy of genocide against Spanish languages other than Castilian, a policy which — unfortunately — was to continue for many years. 1850-1930: The Ban on the Use of the Catalan Language in any Public or Official Activity

Background A march to uniformity accompanied the entrenchment of absolute monarchies in Europe from the eighteenth century. It resulted in the consolidation of the nation-states, together with the subsequent establishment of a centralised order arising out of the middle class revolutions — centralisation appearing from the early years of the

nineteenth century as the hallmark of the structure of the liberal state,

the champion of the egalitarian ideal. However, the process was detrimental to the continued existence and the development of the

diverse languages that had been in common spoken or written use until that time. Political unification is indeed a process that entails the imposition

of one language — defined as the national language — at the expense of all others; it is one more means of asserting the position of the nation-state to which the process leads. In addition to other philanthropic arguments, the rationalist oligarchical approach includes that of linguistic uniformity. Perhaps the best compendium of all these ideas is to be found in the celebrated Rapport sur la Nécessité et les Moyens d’Anéantir les Patois et d’Universaliser l’Usage de la Langue Francaise (Report on the Necessity and Means of Abolishing Dialects

and Establishing a General Usage of the French Language) to which the Convention gave its blessing shortly after it was tabled by Henri Grégoire in June 1794. These ideas, of course, were to gain ground

among that section of public opinion that stood to gain from the unifying process. Politico-administrative centralisation and the ensuing uniformity were a widespread phenomenon in Europe and

ETHNIC GROUPS AND LANGUAGE RIGHTS

68

Spain was

no exception.

In Spain, however,

despite uncertain

prospects, centralisation was to play a major role as a consequence of the outcome of the Spanish Wars of Succession (1702-13). The support given by the regions making up the Catalonian— Aragonian Confederation — Aragon, Catalonia, Majorca and Valencia (the last three Catalan-speaking) — to the cause of the Habsburg Archduke Charles had enabled Philip v (once he had been ac-

knowledged as king of Spain as a result of the Treaties of Utrecht-

Rastadt

1713-4)

to

abolish

the

laws,

constitutions,

by-laws,

privileges, practices and customs of those regions and to confer upon them a new organisation governed by the laws of Castile (enacted

respectively for Aragon, Majorca and Catalonia by the Decrees of 3 April 1711, 28 November 1715 and 16 January 1716). The language question had not been overlooked in this unifying process. In Section 4 of the last named decree — that concerning Catalonia — it had been laid down that ‘Such cases as are submitted to the royal court shall be tried in Castilian’. Here we find assimilation-oriented legislation that was not only to survive but also to develop over more than two

centuries.* 1850-1923

As has been pointed out, there was to be no change in the general

thrust of legislation from 1850 onwards. With the use of Catalan banned from the business of the Royal Court and that of government agencies subsequently established for the administration of Catalonia, as well as from the courts located there, together with the repression of the use of Catalan in education, the shift in language usage was to extend to other areas in which Catalan (just like the

other languages of Spain) was the time-honoured

medium

in

common use. However, during the last decades of the period (190023), there was an increase in the use of Catalan in the business of local

administrative bodies native to Catalonia. Tolerated though it might be, this use of Catalan was not the result of a concession by the

government but rather a consequence of the determination of the regionalist and federalist parties which gradually took over local government in Catalonia. Although Catalan continued to be the language in common use

among Catalonians, for many of whom it was the only language they knew, the linguistic diktat remained in force throughout this period. Under the act of 28 May 1862 on public notaries, ‘public documents shall be drawn up in Castilian’. The 1870 Civil Status Act laid down that ‘when documents submitted are written in a foreign language or a dialect of the country’? a translation into Castilian had to be provided. In accordance with the Civil Proceedings Act of 3 February

THE CATALAN LANGUAGE

69

1881, ‘any document in a language other than Castilian’ had to be accompanied by a Castilian version. Under the royal decree of 20 June 1904, ‘for domestic trunk calls and private telegrams, the use of any

dialect spoken in Spain was conditional on the availability in the

appropriate office or exchange of staff able to understand

the

language concerned’. However the royal decree added yet another restriction in that ‘in correspondence not of a private character and in official communications

or in administrative,

official or judicial

business, only Castilian could be employed’. Finally, it should be emphasised that the regulations implementing the Mortgages Act of 5 August 1915 required that, in order to be entered into the Land Register, documents ‘in Latin or Spanish dialects’ be accompanied by

a Castilian translation.°

The upshot was that throughout this period (1850-1923), Catalan citizens, like all others speaking a language other than Castilian, were unable to use their language in public business or for any activity of a legal significance. If Catalans were forbidden to use their language in their dealings with any public administration, including those located in Catalonia, it will come as no surprise to learn that no legal

provision mentioned the desirability of considering a knowledge of Catalan as an additional ora necessary qualification for candidates for posts in the Catalonia-based public administration. This lacuna was

broad enough to include education — there was the obligation to teach

in Castilian — despite the educational contradiction of a teacher not knowing his or her pupils’ language, the reasoning behind all this being, according to the Explanatory’ Memorandum of the royal decree of 21 November 1902, that ‘it was neither possible nor fair to require of a schoolmaster or schoolmistress having studied in Castilian and knowing only that language that they learn another language or dialect in order to teach on Spanish territory’. From late nineteenth century this assimilation-oriented legislation was given a filip by the adoption on the part of the government of a diglot approach to the multilingual reality. This consisted, when two or more languages existed side by side, in according to the use of one of them a wider scope including dealings with officialdom (public administration), education, dissemination abroad, the use of the others being restricted to that level of communication we may for convenience’ sake refer to as ‘non-formal’ and comprising private

communications and familiar or colloquial usage. A sample of the government's forked tongue can be found in the statement by the President of the Council of Ministers in a debate in the House of Representatives in July 1916: ‘Does anyone believe that the government is currently persecuting the use of Catalan? Is it not being used

with the utmost freedom in the areas and at the level where it can be used?’

ETHNIC GROUPS AND LANGUAGE RIGHTS

70

However, in the paragraph preceding the above, he had already

specified the level at which Catalan could not be used:

if you are calling upon the government to declare in so many words that Catalan is an official language in public bodies, in the courts of justice, in legal documents and in education, we shall tell you that we cannot accede to your claim.”

At all events and despite so many restrictions concerning the use

of Catalan,

the latter in fact increased

in local government

administration in Catalonia as from the early years of this century. This was a result of the political change that Catalonia experienced from the turn of the century, possibly starting with the general elections of May 1901, further to the electoral upswing of the regionalist, autonomist and federalist parties or groups (better known as the Lliga Regionalista (the Regional League) which succeeded in achieving a position of hegemony. To the extent that such groups or parties won a majority in Catalan local government (town halls, provincial councils and, subsequently, the Catalan Mancomunitat once it had been established), Catalan gradually succeeded in infiltrating these institutions, thanks to the absence of any provision specifically prohibiting its use in such organs of local

government.® This use of Catalan was not confined to oral debates

held by official organs but extended also to internal administrative matters (Barcelona City Council, Barcelona Provincial Deputation,” Mancomunitat of Catalonia).'° Although tolerated by the government, this state of affairs ran into violent criticism from the more

diehard Spanish circles’! and did not fail to spark off a number of major legal battles. One such battle we know of in some detail. It resulted from the Attorney General’s refusal to defend the Barcelona provincial government in appeal proceedings on the ground that the

papers concerning the case were drafted in Catalan.'* This conflict

was the logical outcome of the lack of official recognition of Catalan which, while tolerated at local level, continued to have no status

before the courts.

In an attempt to resolve these disputes stemming from the failure to grant Catalan official recognition, after a series of acrimonious debates on the issue of the language in the Senate and the House of Representatives, the Lliga Regionalista tabled in the latter for debate and vote the first-ever bill on the ‘free use of Catalan in the internal life of Catalonia’. The bill, which provided for the free use of Catalan before public bodies and the courts, in legal and commercial documents and education, also specified that the authorities and public servants exercising such functions or serving in such institu-

tions should have a knowledge of Catalan.'’ When it came to the vote

THE CATALAN

LANGUAGE

7A

the bill was defeated by 120 votes to 13. This was the first time that the Spanish legislature had had to vote on the recognition of Catalan. 1923-30 The coup d’etat by General Primo de Rivera ushered in a military dictatorship which lasted from 13 September 1923 to 30 January 1930.

One aim of the new dictatorship was to put an end to the Catalan

regionalist movement which it saw as an incitement to separatism. The new leaders were therefore not sparing in their efforts to put a brake on the increase in the use of Catalan in local public life, this use

being a veritable banner of regionalism. The military coup was barely five days old when a royal decree was issued on 18 September 1923. It provided for measures and sanctions designed to stamp out separatist propaganda and agitation, and the referral of culprits to the military courts, with local and regional authorities being required to

hold official records and documents in Castilian. Except for such documents

and records these authorities could use the regional

language in their internal activities, but ‘in national or international

official documents, persons in whom authority is vested shall not use any language other than Castilian which is the official language of the Spanish state’ (Section 2). As can be seen, apart from that concerning the language of official records and documents, no other restriction on the use of Catalan

than those already imposed earlier appears at this stage. What is new,

however,

is the criminalisation’

of breaches

of these rules

henceforth falling within the jurisdiction of the military courts. Perhaps out of a concern to soften its oppressive impact, the authors of the text hasten to lay down the freedom to use languages in an area

— the private sphere —in which this freedom had never been subject to any restriction: ‘No restriction shall be placed on oral or written expression in regional languages or dialects, songs, dances or costumes’ (Section 2). This latter rule affords an excellent example of the diglot approach.

This determination to gag Catalan was not confined to the area of local public life but extended also to the activity of collective bodies. As an illustration one may quote the order issued by the civilian governor of the province of Barcelona to the Bar Association requiring the Judicial Directory of Catalonia to be published in

Castilian.'* The Bar Association having decided to cease publishing

the directory since it was not mandatory, a dispute arose which ended with the dismissal of its elected officers by the decree of 6 March 1926 and their replacement by government nominees. It was

no doubt this dispute which brought about the decree that soon followed on 17 March 1926 and embodied sanctions to be handed out

ETHNIC GROUPS AND LANGUAGE RIGHTS

72

by civilian governors or the courts to anyone failing to respect the use

of the Spanish flag, the national anthem or emblems. That decree

empowered provincial governors to sanction persons belonging to

the governing bodies of official or private institutions for failure to comply with the instructions of any authority concerning the use of

Castilian. Fines could be as high as 25 000 pesetas (Section 1),

although it was specified that ‘persons committing offences confined

to refusing or resisting the use of Spanish in those cases where its use

is mandatory or to using any language or dialect other than Spanish were liable to imprisonment or a fine of 500 to 5000 pesetas’ (Section

3, 4). Persecution by the dictatorship also increased in education, the

other field in which continuing and growing efforts were devoted to eliminating Catalan. To refer only to persons in state schools, an example that cannot go unmentioned is that of the royal ordinances

of 13 October 1925 and 11 June 1926. According to the former, in the event of the use of textbooks not written in Spanish, inspectors of primary schools were empowered ‘to report the teacher and to have him/her suspended on half-pay’. Further, the second ordinance provided one to three months’ suspension and stoppage of pay for ‘those teachers in state schools who prohibit, cease or obstruct the

teaching of the official language in their school’ (Section 1). In cases of repetition of the offence the royal ordinance empowered the Ministry of Public Education and the Fine Arts to have the teacher transferred to ‘another Province where no other language than the official language is spoken’ (Section 2). The royal ordinance further

stipulated in Section 3 that offending schools could be temporarily or permanently closed. In concluding the survey of this period, reference should be made to the closing down of two public bodies that had sought to promote the use of Catalan in local administrative affairs, firstly, the resolution

of the Standing Committee of the Mancomunitat of 7 March 1924 to do away with the Escola de Funcionaris, and secondly, the provisions of

the provincial statute approved by the royal executive decree of 20 March 1925 abolishing the Mancomunitat of Catalonia.

1931-39: Both Catalan and Castilian as Official Languages in Catalonia Presentation

During the short-lived Second Spanish Republic the situation concerning the hounding and the banning of Catalan in public life underwent a considerable change. Proclaimed on 14 April 1931 and

THE CATALAN LANGUAGE

73

resolved on respecting a pluralist state but also to some extent hamstrung by Catalan claims,’° the new republican regime included amongst its primary objectives a resolution of what was referred to at

the time as the ‘Catalan problem’. With a view to this a whole series of

political measures were taken and these, as we shall see, did not exclude the language problem. Catalan was granted the status of an official language of Catalonia jointly with Castilian which, under the

new constitution, was declared to be the official language of the Republic. The New Legal Framework: the Spanish Constitution and Catalan Statute of Autonomy As an immediate

result of the political climate created by the

proclamation of the republic, without waiting for the promulgation of

the new constitution and the Statute of Catalonian Autonomy which were to set the legal framework for multilingualism, there was a change from the situation governed by the previously existing rules. In order to respond swiftly to Catalonian aspirations, the Provisional Government of the Spanish Republic under the decree of 21 April 1931 acknowledged the restoration of the Generalitat (the traditional name that embodies Catalan public institutions) as an historical fact. Among other functions, the Generalitat provisionally took over the jurisdiction and the duties formerly within the purview of the four Catalonian provincial governments (Diputaciones) that were abolished by the above-mentioned Decree-of 21 April 1931 (Section 6) From its inception, the provisional government of the Generalitat

reestablished the use of Catalan in public affairs. It adopted Catalan in practically all its activities, an accurate reflection of this being the publication — almost entirely in Catalan language — of the Butlleti de la Generalitat de Catalunya (Bulletin of the Catalan Generalitat), the official gazette which published the regulations adopted by the various organs of the Generalitat.'° The constituent phase was far

from completion when the Generalitat was required to draw up a draft

statute for Catalonia which was to determine the powers reserved for the central government of the republic as well as for Catalonia. Although it contained a section devoted to the language question in Catalonia, there was some uncertainty as to the influence of this

section of the draft statute for Catalonia on the final wording of

Article 4 of the constitution which regulated multilingualism in general. Be that as it may, the impression was gained that the

wording of the draft Statute of Autonomy was based on a territorial

principle in favour of Catalan” and that this awakened fears that may

well have served to catalyse fresh reservations in favour of Castilian and which were embodied in Article 4 of the draft constitution. The

74

ETHNIC GROUPS AND LANGUAGE RIGHTS

main interest of the draft statute lies in the fact it expresses the

Catalonian will as regards the regulation of multilingualism and represents the first stage towards the final Statute of Autonomy passed by the Constituent Assembly. The definitive basis for the legal regulation of multilingualism in

Catalonia was secured by the enactment of two texts: Article 4 of the

Second Republic Constitution of 9 December 1931 and, developing on this provision, the lengthier Article 2 of the Statute of Autonomy

of 15 September 1932.'° According to the former,

Castilian shall be the official language of the Republic. Every Spaniard shall have the obligation to know the language and the right to use it, without prejudice to the rights secured to the languages of the provinces and regions under the laws of the State. Unless otherwise laid down by special norms, no one shall be required to know or to use any regional language. The latter text reads:

Catalan shall be an official language, in the same way as Castilian, in Catalonia. For official relations between Catalonia and the rest of

Spain, as well as for communication between the authorities of the

state and those of Catalonia, the official language shall be Castilian. Any official disposition or resolution enacted within Catalonia shall be published in both languages. The same shall apply to the service thereof if any interested party so requests. Within Catalan territory, whatever their mother tongue, citizens shall have the right to the official language of their choice in their dealings with all courts, authorities and officials of both the Generalitat and the republic. Any document submitted to the courts in Catalan shall, if any interested

party so requests, be accompanied by a Castilian translation thereof. Public documents signed by persons duly empowered to utter sworn attestations in Catalonia may be drawn up in either Castilian or Catalan and, if one of the parties so requests, shall be drawn up in the one or the other language. Whenever such attestations may produce effects outside Catalonian territory, the competent official shall draw up copies in Castilian.

Conferring as it did the status of official language on Catalan and Castilian alike, the pattern adopted by the constitution and the

Statute of Autonomy for Catalonia had considerable influence in those specific sectors which go to make up public activity, in that it

introduced novel features which wrought farreaching changes in the legal regulations inherited from the previous political regime. Before

moving on to examine how the new dispensation affected public administration and the administration of justice in Catalonia, it should be emphasised that the system of co-official languages was

THE CATALAN LANGUAGE

75

not one of total equality of status, but rather one in which that

equality was tempered by a degree of restriction, since in recognising

Catalan as an official language, the Statute of Autonomy itself limited its effects in requiring that at the request of one of the parties any document submitted to the courts in Catalan be accompanied by a translation in Castilian. Catalan and Castilian Languages in Public Administration

Citizens’ Linguistic Rights and the Use of Catalan and Castilian by the Administration The consequences for Catalonia-based public administrative organs of the coexistence of Catalan and Castilian as

official languages were those that flow from the effects in law arising

out of the legal status of these languages. To the extent that the conferment of official status on a language means adopting it as a valid and effective medium of communication by public authorities at various levels (internal, transversal and external communication) and, by analogy, recognising it as a valid and effective medium for citizens’ relations with the same public authorities,’? one of the first noteworthy effects of the official coexistence of Catalan and Castilian with respect to Catalonia-based public administrative bodies was the subject’s right to use one or other of the two official languages — according to the system adopted - in his or her dealings with them. Article 2 of the statute itself provides a reminder of this effect when, after declaring Catalan to be an official language-alongside Castilian, it lays down that ‘within Catalan territory, whatever their mother

tongue, citizens shall have the right to the official language of their choice in their dealings with all courts, authorities and officials of

both the Generalitat and the republic’. It should be observed that the

statute asserts the principle of linguistic freedom by separating from the mother tongue the language that could be used. Further, in its

final phrase ‘of both the Generalitat and the republic’, the paragraph quoted above points to the fact that the official coexistence of languages had a territorial scope in that it applied, in terms of its effects, not only to the regional administration (that of the Generalitat) but also to relations with other administrations based in Catalonia. Thus there were not two different language systems established in Catalonia (one for the administration of the Generalitat with two

official languages and another distinct system for the state administration in Catalonia with Castilian as sole official language), as was claimed in an amendment which finally was not accepted by the commission.

A second effect arising out of the status of co-official languages of both Catalan and Castilian was that, in principle, as far as language is concerned, acts performed by public bodies based in Catalonia

76

ETHNIC GROUPS AND LANGUAGE RIGHTS

through the medium of either of the two languages were fully valid

and effective. However, logically, this ceased to be so in respect of

acts intended to produce effects outside Catalonia. Catalan not being an official language in the territory where such acts were to produce their effects, those acts necessarily had to be performed in Castilian,

as we are reminded by the second sentence of the same Article 2. Returning to such acts of public authorities as were confined to Catalonia, logically enough, since what was involved was a political decision not suitable for ‘freezing’ in legislation, the statute had nothing to say about the language or languages through the medium of which they should be performed. Whether this was to be done through the simultaneous use of both official languages or through

that of either the one or the other without distinction was a matter for

the relevant implementing regulations or for decision according to its own criteria by the originating authority. Only when acts by Catalonia-based official bodies were publicised did they become amenable to Clause 3 of Article 2 stipulating that ‘Any official disposition or resolution enacted within Catalonia shall be published in both languages. The same shall apply to the service thereof if any interested party so requests.’ A brief comment is required on the above-quoted Clause 3 in that, for purposes of determining the applicable linguistic regime, they distinguish between publication and serving of public acts. Beginning with publication, they require that all official dispositions or resolutions enacted in Catalonia be published in both languages. This mandatory bilingual publication led to a deviation from the practice originally followed by the Generalitat and which, as already

pointed out, consisted in publishing solely in Catalan the official Butlleti de la Generalitat de Catalunya. As from 31 December 1932, the date on which the Gazette changed its title to become the Butlleti Oficial de la Generalitat de Catalunya, it was published in both language versions. Thus, a decree of the Generalitat of 9 January 1933 stipulated

that ‘In accordance with Article 2, Clause 3 of the Statute of Catalonia approved by the Constituent Assembly of the Republic, the decisions and dispositions issued by the legislator or the Government of the

Generalitat shall be published in the Butlleti in Catalan together with

a Castilian translation.’ A scrutiny of the Gazette clearly shows that, in

the bilingual edition, the two versions were not printed side by side in two columns, but one after the other with the Castilian usually

following the Catalan text.

With regard to the language of the documents the solution adopted in the statute (resolutions shall be served in both languages if an interested party so requests) was

the outcome

of an amendment

carried by the House. Now it is important to emphasise that the

passing of the amendment showed that the adoption of the status of

THE CATALAN LANGUAGE

77

co-official languages did not necessarily imply that both languages would be used for every public document; what it did do was to permit the use of either without distinction, provided that sufficient

precautions were taken to avoid situations of legal insecurity or

breaches of the rights of the defence.

Knowledge of Catalan as a Qualification for Access to the Civil Service Also noteworthy as regards the consequences for Catalonia-based public agencies of establishing the coexistence of Catalan and Castilian as

official languages was the need to adapt their staff of civil servants to the requirements arising out of this coexistence. If the latter meant that citizens could deal with Catalonia-based public agencies in whichever of the two languages they chose, as could such agencies in their internal affairs, logic would seem to imply the need for civil servants, or some of them at least, to know both official languages. In other words, coexistence meant that it was imperative in the various procedures for filling vacant civil service posts in Catalonia-based

administrations to take into account applicants’ knowledge of the two official languages. In the light of the above and mindful of Article

4 of the constitution which, on this specific matter, stipulated ‘Unless otherwise laid down by special norms, no one shall be required to know or to use any regional language’, it might be appropriate to see

whether or not account was in fact taken of a knowledge of Catalan

when it came to filling vacant posts in Catalonia. From the text of Article 4, it may be inferred that such knowledge and use of regional languages could be required, subject-to being laid down in special

norms. On the other hand, a reading of the files concerning the preparing of legislation shows beyond doubt that the general principle whereby no one could be required to know or use any regional language save provision to the contrary by special norm was added just to ‘make it

perfectly clear that, where the discharge of public functions was

concerned, provision should be made for the possibility of requiring civil servants to have a knowledge of the regional language’ .*°Given

that Article 4 of the constitution provided that public servants could

be required to know the regional language, naturally with all due

respect for acquired rights, we shall now see whether a knowledge of Catalan carried any weight when vacancies in the various public

services located in Catalonia came to be filled. For this purpose, a distinction is made among the regional administration formed by the Generalitat of Catalonia, the local administration and branches of state administration. Administration of the Generalitat de Catalunya

When dealing first of all

with the administration of the Generalitat, an institution which was

78

ETHNIC GROUPS AND LANGUAGE RIGHTS

reactivated after a period of eclipse, a convenient distinction may be made among three categories of civil servants: those formerly employed in the four Catalonian provincial governments and subsequently reinstated, those applying for new posts to be filled

through competitive examinations, and those assigned to posts in

services transferred by the state in accordance with the redistribution of responsibilities set out in the constitution and the Statute of Autonomy. On being reestablished the Generalitat was provisionally entrusted with the duties and responsibilities of the former governments of the four Catalonian provinces. This, logically enough, implied the assignment of the officials of those four entities to the administration of the Generalitat (which intended to respect their acquired rights). This being so, and since the staff concerned already enjoyed public servant status without any prior determination of their knowledge of

Catalan, there was no guarantee that the first officials joining the staff of the Generalitat had an adequate mastery of the language. This serves to explain why, as a rule, officials in this category had an inadequate command of Catalan. When it came to appointments to newly created posts, the Generalitat was better placed to intervene regarding applicants’ knowledge of Catalan. In this case, it was able to include in the competitive examinations a paper designed to test candidates’ knowledge of Catalan, such knowledge being considered as an additional qualification or as a mandatory requirement. As we have already pointed out, the inclusion of such tests was underpinned by the constitution. The Generalitat did not by any means choose to make a knowledge of Catalan mandatory in respect of all new positions unexpectedly requiring to be filled. In general, it confined such a requirement to all lower-grade posts and then went on to extend it by the decree of 2 August 1934 to the higher grades. As regards services devolved by the state to the Generalitat, the first point to make is that, in order to avoid a plethora of bureaucrats and a

shortage of skilled staff, it was decided that state services would be transferred lock, stock and barrel, staff included, which meant that

the Generalitat had no say in staffing matters once the transfer had been decided. Although justified for the reasons set out above, the solution chosen also had serious consequences when it came to

ensuring the use of Catalan within the administration

of the

Generalitat. Since, as had previously been the case, no assessment of

knowledge of the language had been carried out, staff belonging to the departments transferred from the state to the Generalitat were

found wanting in their knowledge of Catalan. For those public servants who had declared their readiness to remain in the service of the state and were in the meantime serving the Generalitat, the latter

was required to fill such internal vacancies as might arise by

THE CATALAN LANGUAGE

79

competitive selection from among members of the state civil service. At the examinations organised for this purpose, weight was already attached to the language component in accordance with Section 1 (b) of the decree of 28 March 1933 to the effect that ‘In these examinations

for the filling of internal vacancies, preference shall be given to candidates having a knowledge of Catalan.’

Local Administration in Catalonia The time has come to see what part a knowledge of Catalan had to play in filling staff vacancies in the local administration in Catalonia. State legislation regulating local government remained in force until the Generalitat adopted its own texts on the matter. The relevant state laws applicable to our area of inquiry were the Municipal Government Act enacted by royal decree of 8 March 1924 and the regulation of 23 August 1924 concerning senior local government administrative posts (town clerks, treasurers) and public servants in general. Under these laws local government enjoyed a broad margin of freedom in determining the content of tests designed for the selection of candidates for public posts requiring technical skills, a university degree or administrative ability. That margin undoubtedly encompassed the introduction of a requirement for a knowledge of Catalan, either as an additional or an essential qualification, as the

case might be. A survey of the official gazette of the period shows that although a knowledge of Catalan was often set as a paper in internal or competitive examinations for external candidates, this was not a

general state of affairs. . | When it came to the possibility of introducing some system for assessing knowledge of Catalan in the selection of candidates for

posts of administrative heads of Catalan local authorities, such as

town clerks, the such posts were examination, the down in the law

position was very different. Since candidates for recruited on the basis of a state-wide competitive ability to meet certain specific requirements laid on local government — a knowledge of the local

language not being one of them — was considered merely as an

additional as opposed to a mandatory qualification. Tests designed to ascertain candidates’ knowledge of Catalan were therefore out of the question which — having regard to the importance of a town clerk’s duties — was a particularly serious matter. With the coming into force of Schedule xv on municipal employees of the Local Government Act of Catalonia on 16 July 1934, conditions

for the recruitment of such categories of officials underwent farreaching changes. From the wording of the new act it could be inferred that nothing stood in the way of introducing a requirement for a knowledge of Catalan at competitive examinations, either as an additional or as an essential qualification, for the purposes of both

ETHNIC GROUPS AND LANGUAGE RIGHTS

80

internal and external examination procedures. However, the new act did not explicitly include notice of such a requirement to be given in every vacancy notice, so that there was no guarantee that a reference

to the need to know Catalan would appear in any given vacancy notification.

Central Government Organs in Catalonia Before concluding this study of the relevance of a knowledge of Catalan for would-be Catalan civil servants, mention should be made of the central government Nothing is known of administrative services remaining in Catalonia. any statute on this subject. What was serious about such lack of legal provision ensuring that sufficient officials at this level knew Catalan was that there was no guarantee for the exercise of one of the rights conferred by the Statute of Catalonia on all citizens in Catalonia, namely the right to ‘the official language of their choice in their dealings

with

all courts,

authorities

and

officials

of both

the

Generalitat and the republic’. Catalan and Castilian Languages in Judicial Administration Citizens’ Linguistic Rights and the Use of Catalan and Castilian in the Administration of Justice The status of co-official languages for both Catalan and Castilian made itself felt throughout all public institutions in Catalonia, including those responsible for the administration of justice. Contrary to earlier practice, although subject to certain conditions, as will be seen presently, both languages could be used as an effective medium for judicial activities confined to Catalonia, with

citizens enjoying the right to use before the courts whichever of the two languages they preferred. That notwithstanding, Article 2 of the Statute of Catalonia con-

tained an in-built bias in favour of Castilian in providing that ‘any

document submitted to the courts in Catalan shall, if any interested party so requests, be accompanied by a Castilian translation thereof’. In ascribing to the party choosing to use Catalan the responsibility for

providing the translation into Castilian, the legislature deprived Catalan of one of the effects flowing from its status of co-official language in that the freedom of choice set out in the statute was

clearly weighted in favour of Castilian. Given the restriction thus imposed, from the standpoint of respect for linguistic rights it would have been preferable, so it seems, to place the onus of providing the

translation on the courts. This would have been the only way of ensuring the citizens’ freedom of choice between the two official languages and of establishing a genuine equality between them. Whatever the statutory. provisions may have held, the problems

which confronted the courts as a result of the status of co-official

THE CATALAN

LANGUAGE

81

languages made it advisable to enact a law that would serve to dispel the uncertainty to which these provisions had given rise. Such was the essential purpose sought by the Generalitat in promulgating the decree of 3 November 1933 regulating the use of Catalan before the courts.*! The provisions of this decree are preceded by a lengthy explanatory memorandum designed to uphold the jurisdiction of the Generalitat to enact the decree. The latter confirms the powers

conferred on the Generalitat under Article 11 of the Statute of Catalonia to organise the administration of justice.” An examination

of the provisions of the decree shows that, as a rule, the choice of the language in which cases were to be tried — Catalan or Castilian —wasa matter within the discretion of the presiding judge. This matter was decided at the opening of the proceedings in all courts located in Catalonia (Section 1). Whatever language was adopted in which to try the case, citizens had the right to choose the language they

preferred in their dealings with the-courts~* and were therefore

entitled to make their oral submissions in the official language of their choice without being obliged to translate them (Sections 2 and 4). This was arranged by the clerk of the court at the expense of parties requesting a translation of oral statements into a language other than that in which it had been decided to hear the case (Section 2); whatever language was adopted by the presiding judge, parties were allowed

to submit

documents

in Catalan

or Castilian,

with the

proviso that if such documents were written in Catalan they had to be accompanied by a Castilian translation if a~party so requested (Section 3).** All communications, certificates, summary or verbatim records of court proceedings addressed by judges, tribunals and other Catalan judicial authorities to the Supreme Court in Madrid or to judicial or other authorities of the republic outside Catalonia had to

be written in Castilian (Section 1).7? However, all communications, certificates, summary

or verbatim records addressed by judges,

tribunals and Catalan courts to the Catalan Court of Appeals in Barcelona had to be written in Catalan (Section 1). If a party so requested, any ruling or verdict was required to be written in Catalan and Castilian (Section 1). Finally, when the decree came into force, Article 4 of the royal decree of 16 January 1716°° and Section 25 of the

act of 28 May 1862 ceased to be applicable (Section 8).*”

By determining the languages for the trial of cases, by defining the criteria for the adoption of the trial language and by regulating the

presentation of oral evidence, the decree dispelled those ambiguities

which most urgently required clarification. The decree reflects a will to place Catalan and Castilian on an equal footing in so far as this was

possible under the Statute of Catalonia. However, a close scrutiny of the decree shows that its authors were concerned to differentiate between the courts and tribunals of Catalonia in contradistinction to

ETHNIC GROUPS AND LANGUAGE RIGHTS

82

the Catalan Court of Appeals.*® Although in the case of the former it

provides for freedom of choice of the contains no provision governing this in the Court of Appeals. Significantly, all communications, certificates and

language to be used in court, it matter as regards proceedings however, the decree states that summary or verbatim records

submitted to it by judges, tribunals and Catalan courts ‘shall be

written in Catalan’. Even though the Catalan legislature, in creating

the Catalan Court of Appeals on 10 March 1934, failed to specify the language to be used in cases to be heard by the latter, it would not be

presumptuous to suggest that the legislature sought to have such cases

dealt with in Catalan,

for that was

that court’s

common

practice. Knowledge of Catalan and Access to the Courts The point having been made that citizens enjoyed the right to use either of the two official languages in their dealings with the courts whose jurisdiction was confined to Catalonia, it was also desirable that judges performing their duties in Catalonia should have a command of both. It was precisely with a view to seeing to it that judicial vacancies arising in Catalonia were filled by candidates knowing both languages, but essentially Catalan, that the Catalan Statute of Autonomy laid down that vacancy notices should specify that posts would be filled preferably by persons having a knowledge of Catalan law and language. Similarly, internal vacancy notices concerning posts of clerks and other staff employed in the judicial administration had to include a similar reference (Article 11 of the Statute and Section 1 of the decree of 24 October 1933 implementing the agreement to transfer

these judicial services to the Generalitat de Catalunya).

A knowledge of

Catalan was a prerequisite for local magistrates (Generalitat decree of 30 March 1934) as well as for Catalan public prosecutors (Article 11 of the statute). Under Article 11 of the Statute of Autonomy, the appointment of

members of the Catalan Court of Appeals was not governed by those

state laws that applied in the case of other judges, although it had to be made in accordance with enactments by the Catalan legislator. The act of parliament of 10 March 1934 stipulated that, in respect of the

three places out of 12 that were filled by internal competitive examination, one of the purposes of the latter was to eliminate candidates failing to show proof of the ability to express themselves

fluently in Catalan both orally and in writing (Section 15, paragraph 2) Catalan and Castilian in Legislation and Other Public Activities

To understand fully the implications of the recognition of Catalan as

THE CATALAN LANGUAGE

83

an official language, including its repercussions on public bodies, a brief mention should be made of its development in other areas of public activity, with special reference to law making. Beginning with this last-named sphere, the proceedings of the legislative body of Catalonia show that Catalan was practically the only language used by the Catalan parliament for legislative purposes, and this despite

the freedom of deputies’ to choose either of the two official languages. Further, as already pointed out, although required to be published in both official languages, Catalan legislation was passed in Catalan with the Castilian version coming later. That the Catalan legislature in its freedom of choice between the two languages should have opted so clearly in favour of Catalan should come as no surprise, all the less so as, to quote Section 3 of the Catalan Internal Statute passed by the Catalan parliament on 25 May 1933, ‘Catalonia’s language is Catalan’. If they were to discharge duties through the medium of Catalan, the staff of the office of the

clerk of the Catalan parliament (the parliament set up on 13 December 1932 under the Statute of Autonomy), necessarily had to have a command of that language in addition to Castilian. Hence the reference in the regulations concerning typists and shorthand typists (5 January 1933, 10 March 1933 and 5 June 1934) to the use of Catalan

for examination purposes. Being an official language only within Catalonia, Catalan failed to penetrate the Chamber of Deputies — the State Legislative Assembly where all legislative activity took place in Castilian, that is, in accordance with Article 4 of the constitution, the official language of the republic. By way of conclusion to this chapter and with reference to other areas of public activity — solicitors, official registers and place-names — to mention only the first, it was laid down that in filling posts becoming vacant in Catalonia special weight should be attached to a knowledge of Catalan law and language. However, in respect of public registrars, a knowledge of Catalan came to be an

essential requirement in so far as Article 2 of the Statute of Autonomy

entitled interested parties to request public documents to be written in either of the two official languages. As regards place-names, it

should be recalled that the Generalitat alone decided on official names

of localities; the definitive form of the latter being established in Catalan. 1939-40: Putting Back the Clock: a Return to the Days of Persecution and Banning of Catalan

The second republic was short-lived. A military rebellion against the constitutional republican regime that started in July 1936 sparked off

84

ETHNIC GROUPS AND LANGUAGE RIGHTS

a civil war lasting three years and ending with the victory of the rebels. The latter set up a totalitarian political regime clearly modelled on Fascism that put an end to political and cultural pluralism. While the war was still going on and as the insurgents began their occupation of Catalonia, an act by the head of state made clear that the Catalan Statute of Autonomy had not been valid in Spanish law from the very beginning of the rebellion. With the abolition of the statute and the occupation of Catalonia, the latter lost its political

autonomy and, having ceased to enjoy the status of an official language, Catalan ceased to be used for official purposes. The new state by no means contented itself with excluding Catalan from official dealings. It very soon began to issue a number of enactments and decisions deliberately designed to persecute and prohibit the use of Spanish languages other than Castilian, including Catalan, from a host of fields of activity. For example, under an order of 18 May 1938, since — according to the explanatory memorandum that prefaced it — ‘The Spain of Franco cannot tolerate aggressions

against the unity of its language’, entries in public registers ‘shall be made in Castilian’. Another such order of 26 May 1938 proclaimed in no uncertain terms that the use of any language other than Castilian

in the statutes, articles and notices of the holding of such meetings,

councils or bodies as come under the Department for Trades Unions shall be prohibited. On 10 August 1938, an order by the Delegate for Public Order in the Catalan province of Lleida (Lerida in Castilian) warned that ‘the instructions from the authorities concerning the use

of the Catalan dialect should be strictly observed’. The same order

went on to recommend that Catalan should not be spoken in public

places. An official circular, issued by the inspectorate for primary schools of Lleida on 20 February 1939, declared that ‘any book written in whole or in part in a language other than Castilian should be withdrawn from schools’. Even the governor of the province of Barcelona, through an order of 28 July 1940, laid down that public

employees ‘expressing themselves in any language other than the official language of the state in the course of their official duties shall be liable to dismissal’. For teachers in private schools the rule was that ‘the use of any language other than Castilian would lead to exclusion from the teaching profession’.””? These and other measures, not unreminiscent of those adopted by the Fascists in Italy,*° heralded a

long period of forty years during which, although it was the language

of a far from negligible number of citizens,*’ the use of Catalan was

persecuted and prohibited before finally coming to enjoy some degree of tolerance. It was not until the constitution was promulgated on 27 December 1978 that Catalan regained its status of an official language in Catalonia.

THE CATALAN LANGUAGE

85

Notes

10

ial

During the Second Republic, only Catalonia and the Basque country became autonomous regions (Catalonia, Statute of Autonomy of 15 September 1932; Basque Country, Statute of Autonomy of 6 October 1936). The term ‘minority’ has many different definitions. In asserting that the Catalans make up a minority we follow the definition suggested by Francesco Capotorti as Special Rapporteur of the Sub-Commission for the Prevention of Discrimination and Protection of Minorities of the Commission for Human Rights. Capotorti (1979), p. 101. Concerning techniques for the protection of minorities, see inter alia, Agnelli et al. (1979), pp. 89 et seq. Among assimilationist laws predating 1850 the royal act of 23 June 1768 is worth recalling. It ordered the use of Castilian in Catalonia in all cases brought before the courts as well as in primary education. In this law as in others the legislator groups languages other than Castilian under the concept of dialect, a philological aberration which offers a good example of the aims of assimilation. J During this period should be added the royal order of 15 January 1867 which stated that ‘dramatic works written exclusively in any of the dialects of the Spanish Provinces shall not be eligible for censorship’. This is a quotation from a debate in the Congress of Deputies after the tabling of a ‘bill concerning the free use of the Catalan language in the internal life of Catalonia’ on 8 July 1916 by Deputies belonging to the Lliga Regionalista. This was the first time anything was done to meet, albeit incompletely, the long-standing claim by Catalan political nationalists to recover the right to use Catalan in Catalonia-based public administrations, institutions and courts. In February 1910, the government of the province of Barcelona decided that deputies could speak Catalan or Castilian in plenary session as they chose and that business could also be transacted in either of the two languages. Similarly, on 2 July 1912, that government created the Escola de Funcionaris d’Administraci6 Local (a training college for local government officials). Although its courses were designed for training in local government and although it had no say in the matter of appointments, this college was undoubtedly a stimulus for the catalanisation of local government. It should not be overlooked that in the enactment setting up the college (No. 8), it was laid down that Catalan was its official language and that instruction should be given through the medium of Catalan. See Sarrion i Gualda (1982). Created on 6 April 1914, the regional administrative body of Catalonia (La Mancomunitat) was an administrative entity grouping together the four provinces of Catalonia for the first time for many years. It was no mean achievement to obtain agreement to set up the Mancomunitat in face of government opposition. Run by the Lliga Regionalista, La Mancomunitat brought about the use of Catalan in the field of administration. An example of the rejection of the use of Catalan is to be found in the message of protest by the Real Academia Espariola (Royal Spanish Academy) to the Minister for Public Instruction and the Fine Arts on 26 January 1916.

12 14 15

Quoted by Ferrer i Girones (1986), p. 108.

Ibid); pS 131. The Barcelona Bar Association had previously agreed the use of Catalan as an official language. Pursuant to that agreement, in 1923 the Bar Association published its first Catalan edition of the Judicial Directory of Catalonia. Catalonia, it should be recalled, was proclaimed the Catalan Republic a few

ETHNIC GROUPS AND LANGUAGE RIGHTS

86

16 iW

18 iy 20

hours before the proclamation of the Spanish Republic in Madrid. See Gonzalez Casanova (1974), pp. 288 et seq. The first issue of the Butlleti de la Generalitat de Catalunya was published on 3 May

1931. In its Article 5 the proposed statute provided that ‘Catalan shall be the official

language in Catalonia; in relations with the government of the republic, however, the official language shall be Castilian. Under the Statute of Catalonia, citizens whose mother tongue is Castilian shall have the right to express themselves in person in that language before the courts and in their dealings with officialdom. Similarly, citizens whose mother tongue is Catalan shall have the right to use it in their relations with official bodies of the Republic in Catalonia.’ In addition to Article 2, two other articles of the statute (Article 7, Education, and Article 11, Administration of Justice) were devoted to the question of multi-

lingualism. Milian i Massana (1984), p. 131. Statement by Rodriguez Perez, Member of the Commission, Diario de Sesiones de la Cortes Constituyentes, 41 (1931), 18 September, p. 1026.

21

The importance of the decree has been underlined by Duarte I Montserrat

D2.

See Milian i Massana (1981), p. 327, n. 16. This right was already recognised under Article 2 of the statute. Included in the decree are requirements previously laid down by Article 2 of the

24

(1980), p. 82.

statute.

25 26 27 28

This rule was a logical consequence of the fact that Catalan was recognised only in Catalonia. It should be recalled that this provision laid down that ‘such cases as are submitted to the royal court shall be tried in the Castilian language’. This article required public documents to be written in Castilian. Provided for by the Statute of Autonomy, the Catalan Court of Appeals was established and regulated by the act of 10 March 1934 by the Catalan legislature. Its ordinary jurisdiction encompassed civil and administrative matters, exclusive jurisdiction being vested with the Generalitat. On this tribunal, see

29

Milian i Massana (1983). For these regulations and others, see Benet (1978). See Klein (1986).

31

No figures for this period are available. However, in 1975, when Catalan was

still not officially recognised, Catalan speakers in Spain numbered 5-6.4 millions. See Strubell i Trueta (1981), pp. 89-96. More recently, El Consorci d’Informacié i Documentacié de Catalunya published the findings of the 1986 census where people were asked to indicate their knowledge of Catalan. According to this survey, Catalonia, Valéncia and the Balearic Islands group contain 8 623 272 inhabitants able to understand Catalan, 5 972 588 who can speak it and 4 707 161 who are able to read it.

Bibliography Agnelli, A., Bartole, S., Nairn, T., Passerin d’Entreves, E., and Pizzorusso, A. (1979),

‘Aspetti giuridico-istituzionali dei problemi delle minoranze’, in Atti della conferenza internazionale sulle minoranze 10-14 Luglio 1974, I, Trieste, pp. 73-114. Benet, J. (1978), Catalunya sota el régim franquista, Barcelona. Capotorti, F. (1979), Estudio sobre los derechos de las personas pertenecientes a minorias étnicas, religiosas o linguisticas (Study on the rights of Persons Belonging to Ethnic,

THE CATALAN LANGUAGE

87

Religious and Linguistic Minorities), New York. Duarte i Montserrat, C. (1980), El catala llengua de l’administracié, Barcelona. Ferrer i Gironés, F. (1986), La persecucié politica de la llengua catalana, Barcelona, 4th edition. Garcia Alvarez, M. (1978), ‘La cuestion linguistica en las Cortes Constituyentes de la II Republica’, Revista de Derecho Publico, 71, pp. 307-18. Gonzalez Casanova, J.A. (1974), Federalisme i autonomia a Catalunya (1868-1938), Barcelona. Klein, G. (1986), La politica linguistica del fascismo, Bologna. Milian i Massana, A. (1981), ‘Aproximacion al régimen juridico previsto para la lengua catalana en el Estatuto de Autonomia de Cataluna’, Revista de Administracion Publica, 94, pp. 317-37. Milian i Massana, A. (1983), El Tribunal de Cassacio de Catalunya 1 l’organitzacio del contencids administratiu a la Il Republica, Barcelona. Milian i Massana, A. (1984), ‘La regulacién constitucional del multilinguismo’, Revista Espanola de Derecho Constitucional, 10, pp. 123-54. Sarrion i Gualda, J. (1982), Historia de l’Escola d’Administracié Publica de Catalunya

(1912-1939), Barcelona. Strubell i Trueta, M. (1981), Llengua i poblacié a Catalunya, Barcelona.

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88

FRANCE #-s,

ANDORRA

MEDITERRANEAN SEA

MENORCA

CPevissh

Ga (IBIZA)

eae ee

(nternational

sees,

Regional boundaries

Map 4.1

boundaries

The Catalan language region

Provincial

boundaries

Catalan language

area

5

Rhaeto—Romansh in Switzerland up to 1940 BERNARD CATHOMAS

Introduction

Linguistic, Geographical and Statistical Background The term ‘Rhaeto-Romanic’ encompasses three linguistic groups — geographically separated — in the eastern Alps: @ e@ e

The Romansh language of the Swiss canton of the Grisons 50 000 speakers in 1980). The Ladin language of the Dolomities spoken by some people in the valleys around the Sella massif in the provinces of Bolzano, Trento and Belluno. The language of Friuli in the north-eastern part of Italy 500 000 speakers).

(some 30 000 Italian (some

Since the historical evolution and in particular the legal situation of

the language in these three language groups — being comparatively

separated in geographical terms and belonging to two states — are fundamentally different, the following essay deals exclusively with Rhaeto—Romansh (as spoken in the Swiss canton of the Grisons). The

federal census of 1980 showed that 51 128 people still spoke this language. Of these, 36 017 lived in the Grisons (30 213 in the traditional Romansh speaking area). In conformity with the definition used today this area comprises those political communities that revealed a Romansh speaking majority on the occasion of the

first federal census of 1860. In this area, comprising 113 political communities,

the Rhaeto-Romans

then represented more than 90

per cent of the population. The Romansh language of the Grisons is divided into five written varieties: Sursilvan, spoken in the Surselva along the Vorderrhein; Sutsilvan in the Hinterrhein valley; Surmiran in the central Grisons;

Puter in the Upper Engadine; and Vallader in the Lower Engadine and in the Miustair valley. The evolution of the Rhaeto—Romanic

population between 1850 and 1940 is demonstrated in Table 5.1. 89

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ETHNIC GROUPS AND LANGUAGE RIGHTS

Table 5.1: The Rhaeto-Romanic population, 1850-1940 Canton of the Grisons

Switzerland

Year

number

%

number

%

1835* 1850+ 1880

46 994 42 439 37 794

49.0 47:2 39.8

no data — 38 705

— = ee!

1900

36 472

34.9

38 651

iy

1920 1941

39 127 40 128

32:6 31:3

42 940 46 456

fis Ti

Notes * For 1835 compare Réder and von Tscharner (1838), p. 314. From 1850 the numbers are based on the federal censuses. The census of 1850 shows only the language generally used in each political community. Hence the 42 439 people represent in reality the total population of the then official Romansh-speaking area, inclusive of people possibly speaking other languages. The language statistics of 1860 and 1870 are based on ‘households’, not on ‘individuals’.

t Expressed in absolute numbers, the Rhaeto-—Romanic population has increased slightly since 1880. Proportionately (in other words, in proportion to the total population), however, a regression must be recorded since the non-Romansh speaking population in the canton of the Grisons and in Switzerland has increased.

Evolution up to 1850

History of a Continual Retreat The history of the Rhaeto-Romanic language and culture is the

history of a continual retreat. In the fifth and sixth centuries AD —

when the Rhaeto—Romanic culture was at its height — it covered an area reaching from the upper Danube to the Adriatic Sea, thus including the eastern part of Switzerland, the Vorarlberg, parts of the

Tyrol and the present Grisons. The advance of the Alemans and

Bajuvarians (Bavarians) from the north led to germanisation, but the

latter was also brought about by the immigration of ‘Walser’ people from the Wallis (Valais) in the thirteenth and fourteenth centuries.

During the Middle Ages the whole of the canton of the Grisons as we know it today was still a Romansh speaking area, but in the sixteenth

century its capital, Chur, plus the north eastern territories as well as some remote valleys (Walser settlements) had already become

German speaking. The Reformation and the Counter-Reformation encouraged the first publications in Romansh. However, various regions developed their own written idiom, the aftereffect of which is

RHAETO-ROMANSH

IN SWITZERLAND

Oi

still felt today and which has led to the five different Romansh idioms still being in written use in the Grisons today. The Reformation and the Counter-Reformation — aided by developments in the socioeconomic situation — also led to a stabilisation of the linguistic boundaries up to the nineteenth century. Around 1800 the RhaetoRomansh still represented the majority of the population in the area of the canton of the Grisons but as early as 1860 the German speaking element had gained a relative and in 1920 an absolute majority. Starting in 1860 and recorded in the following censuses the RhaetoRomanic element consistently lost its majority in several political communities. The once relatively compact Romansh speaking area from the Bindner Oberland (the River Rhine area) via the central Grisons (Hinterrhein, Julia and Albula area) to the Engadine and Miustair valley (the Inn and Rom area) began to fall to pieces. The fact that the territories of the central Grisons were particularly affected by germanisation accelerated this process. The reasons for this renewed trend towards the use of the German

language, developing from the middle of the nineteenth century onwards, can be listed as follows:

e@

e e

e

the increasing mobility of society at the time as a result of transit

and tourist traffic (immigration of labourers and guests speaking

other languages, completion of the Alpine road system and, from the end of the nineteenth century onwards, the construction of the Rhaetian railways); the increasing migration fromthe peripheral regions to the thriving industrial centres of the Swiss midlands and abroad; the declining linguistic consciousness in the first half of the nineteenth century, due to the lack of presence of the RhaetoRomanic language in public life and society and to the legal status of Romansh;

the entry of the Grisons into the Swiss Confederation in 1803 and the orientation of the Romansh speaking area towards Alemannic/German speaking north for economic reasons.

the

The period of time here under discussion — 1850 until 1940 — therefore represents a decisive phase, which brought about important changes

in the linguistic field and on various levels. Chancery and Legal Language in the Grisons before 1800 The Rhaeto—Romanic language has never directly been suppressed by executive power but the pragmatic mountain dwellers recognised and employed German — a language of European significance — as a means of communication with the supreme State of the “Three

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ETHNIC GROUPS AND LANGUAGE

RIGHTS

Leagues’ from an early stage. From the middle of the fifteenth century onwards the Free State of the Three Leagues comprised the

‘Gotteshausbund’ (The League of the House of God) (established in 1367), the ‘Graue Bund’ (Grey League) (established in 1424) and the ‘Zehngerichtebund’ (League of ten Shires) (established in 1436). This

Free State took the place of the medieval feudal system and lasted until 1799, when the Grisons were united with the Helvetic Republic. The Rhaeto-Romanic which was not standardised as a written language until the sixteenth and the seventeenth centuries and

which from the very beginning had different varieties, did not gain acceptance as the overall legal and official language despite the fact that at the time the Romanic population was in the majority. However, it was employed in the Romansh speaking area for

neighbourhood meetings, legal proceedings and in the local administration. At the end of the sixteenth and the beginning of the seventeenth centuries it finally superseded Latin. This triumph of the

native regional languages occurred not only in relation to the civil and criminal statute law but also to village regulations, proof of which is

furnished in Rechtsquellen des Kantons Graubtinden (Reference Book for the Application of the Law of the Canton of the Grisons). However, in the state as a whole as well as in the different leagues, German

continued to be employed as the official language throughout.

Awakening after the Ancien Régime It was not until 1794 that, at a meeting of the Three Leagues, it was proclaimed that henceforth German, Italian and two varieties of the Rhaeto—Romanic language were to be the four languages recognised

by their republic. It was decreed that the leagues were to address their writs and final decrees to the Romansh speaking political communities in their respective languages. In 1803 the legislative assembly (‘Grosser Rat’) of the ‘newborn’ canton — now being a

member of the Swiss Confederation — decreed that at the beginning of each session an interpreter was to be appointed. Upon request he was to translate speeches into the language of other deputies. All

members of the assembly were free to employ their mother tongue. Official decrees were also to be sent to the political communities concerned in either Romansh or Italian. Thus the fundamental equality of status of the three cantonal languages in the new canton of the Grisons was legally written down. In practice, however, German

would appear to have had a clear dominance because the Rhaeto— Romanic political exponents were able to speak German already at that time, whereas the German speaking partners probably did not speak any Romansh. In 1825 the cantonal parliament decreed that all bills and motions were to be sent to the Rhaeto-Romans in the

RHAETO-ROMANSH IN SWITZERLAND

93

Oberland and in the central Grisons in Romansh but to the Rhaeto—

Romans in the Engadine in Italian.

Despite formal recognition in the first half of the nineteenth

century the enduring struggle for equal acceptance of the languages

continued in practice. In 1841 the deputies for the Italian speaking Mesolcina and Calanca valley were instructed to request that all official notifications to be addressed to the courts and the political communities there shall henceforth be written in the Italian language. With regard to that the assembly decided to reject once and for all the request presently made by the delegates from Misox and Calanca as well as any similar requests that could be made in the future. [Parliamentary minutes of 14 July 1841]

In 1842 the same deputies renewed their request. The response of the

assembly was to refer to complications and the extra work emanating

from the request, ‘especially when considering that all the Romansh speaking communities might use this same right, too — a right to which they are also entitled’. Of interest in these minutes is the reference regarding the status of the Romansh language in the parliamentary minutes of 30 June 1842: The Romansh language is not a national, but a mere provincial language with various written idioms and, besides, the Romansh speaking communities being more and more willing to make themselves familiar with the German language, the same degree of necessity for making concessions would not apply to them.

Yet the legislative assembly then resolved that ‘all laws, bills and motions, general resolutions and decrees shall be translated into the

Italian and Romansh languages for the political communities in question’. But in 1848 the parliament returned to this resolution and

reduced it so that only the bills and motions

(instead of all

resolutions) going from the cantonal parliament to the political communities were to be translated into Oberland Romansh (but again not into Engadine Romansh) in connection with which only the

text written in German continued to be regarded as legal and official, as was recorded in the parliamentary minutes of 30 June 1842 and of 31 July 1848. Summing up, it may therefore be said that up to 1850 —in spite of its formal recognition — for economic and political reasons the Rhaeto— Romanic language in practice continually met with difficulties. Instead of encouraging translations the authorities did their best to further the knowledge of German on the part of the Romansh speaking population to the degree where the Romansh language would no longer need to be considered by the administration. Thus

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ETHNIC GROUPS AND LANGUAGE RIGHTS

the ambition of the authorities was to assimilate the Romansh speaking people, to have them absorbed by the German language, rather than to work for the survival of their language by giving it recognition within the administrative domain and the judicial system. The extension of the compulsory elementary school system

contributed greatly to the spreading of German. In spite of that in 1848 the deputies from the Oberland and the Lower Engadine still maintained their view that translation would still be necessary for a general understanding. On the Swiss Federal Level before 1850 On the federal level the Rhaeto-Romanic language was in practical terms of no importance before 1850, since up to 1799 the Grisons

represented a separate free state and because the ties between the Grisons and the federal government were only of a loose nature from

1800 until 1848 (despite the entry of the Grisons into the Swiss Confederation in 1803). Following the union of the Grisons with the Helvetic Republic in 1799, Helvetic government officials had instructed the provisional government of the canton of Rhaetia (the new name given by the Helvetic Republic in imitation of the Roman province of ‘Rhaetia’) to translate its proclamations into Italian and Romansh and to send them to all political communities. The drafts of 1832 and 1833 for the federal constitution do not contain any regulations with regard to the state languages of the confederation. As late as 1847 the commission appointed to draft a new constitution

still did not see fit to include articles dealing with the issue of languages. It was only when the federal Tagsatzung (meeting of the representatives of the cantons) discussed the draft in 1847 that the

delegates of the Canton de Vaud proposed that the following

regulation be included in the constitution: ‘Les trois langues parlées en Suisse, l’allemand, le frangais et l’italien, sont langues nationales’

(the three languages spoken in Switzerland, German, French and Italian, are national languages). As a result the following draft

wording of the article on languages was approved by the Tagsatzung: ‘The three main languages used within the Swiss Confederation are declared to be the official ones and the Federal Chancery shall make

arrangements for the final decrees, the laws and resolutions of the

federal authorities to be drawn up — at the expense of the Swiss

Confederation — in the German and French languages’. Hence Italian as a written language was not always compulsory and only the text written in German was legally binding. On 27 July 1848, as proposed by the editorial committee, it was, however, unanimously resolved

that the following Article 109 was to become constitutional law:

RHAETO-ROMANSH IN SWITZERLAND

95

‘Switzerland’s three main languages — German, French and Italian — are the national languages of the Confederation’. How is the absence of the Rhaeto-Romanic language in the federal constitution of that time to be explained? The message of the Federal

Council to the federal legislative assemblies with regard to the recognition of Rhaeto-Romanic as a national language given in a document dated 1 June 1937, contained the following explanation: The question of recognising the Rhaeto-Romanic language in a like manner did not come up for discussion; neither on the occasion of these debates [1847-8] nor 25 years later when the articles of languages were retained unchanged (as article 116) in the revised constitution of 1874. But while the original motion proposed by the delegates from the Pays de Vaud simply spoke of the three languages spoken in Switzerland, the final wording of the article refers to Switzerland’s

three main languages. Does not this solution imply that the legislature was quite aware of the existence of a fourth Swiss language, that is of Rhaeto—Romanic? The legislature’s refraining from declaring this fourth language to be also a national language is obviously to be set down to reasons of a practical nature. Undoubtedly even then the legislature linked the term ‘national language’ with the conception of ‘official language’ or ‘state language’. This term — for practical reasons (to avoid expansion of the public administration and of government expenditure) — the legislature wanted to restrict to the country’s main languages. However, by not applying the term ‘national languages’, in other words ‘state languages’, of the Confederation to all but only to

the main languages of the country, the existence of a further Swiss language was strictly speaking, confirmed. The Legal Position of the Rhaeto-Romanic

Language in the Grisons

between 1850 and 1940

Sovereignty of Languages Lies with Political Districts and Communities

In 1848 the new Swiss federal constitution was adopted in the Grisons as well as elsewhere by a large majority. Between 1848 and 1854 its community based administration was restructured to fit into the centralised canton system. Hitherto sovereignty had been

exercised by the local legal districts. The new constitution of 1854 transferred sovereignty to the people as a whole, shifting the various competences from the local legal districts to the canton. During the same period there was also a new division of the districts in the canton of the Grisons. De facto, linguistic sovereignty remained with the districts and communities, which within their own boundaries

were entitled to govern language use themselves. In the Rhaeto— Romanic communities, Rhaeto-Romanic was the official language throughout, with the then few exceptions of translations for non-

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ETHNIC GROUPS AND LANGUAGE RIGHTS

Romansh speaking addressees. Within the canton the attempts to

suppress altogether or in part the translations into the Romansh language continued; even though according to their deputies recorded in the parliamentary minutes of 12 June 1850 the people in the Romansh and Italian speaking regions could not read drafts of any bill written in German. Article 12 of the Rules of Parliamentary Procedure of the cantonal parliament of 1854 thus read, ‘Each member

of the cantonal parliament is at liberty to deliver his votes in any of the three state languages’. Printing and forwarding of the voting papers

were governed by the following rule laid down in the cantonal parliament minutes on 21 June 1854: ‘Papers translated into Italian are to be sent to the Italian speaking communities as well as to those of the Upper and Lower Engadine, of the Miistair valley, and to the communities of Bergiin, Bivio and Marmels; to the Romansh speak-

ing communities of the Oberland, papers are to be sent in their own idiom’. The same rule had already come into force under the Rules of 1820 and 1834. The text written in German was the only authentic,

legally binding one and the latter had to be enclosed (as the original text) with the respective translations to be sent to the Rhaeto— Romanic and Italian speaking communities. Even in the cantonal

court German had a privileged position. As before, official documents written in a language other than German had to be submitted together with an accurate German translation according to the 1816

law on the supreme appeal procedure in civil matters. A particularly

flagrant case of linguistic suppression occurred in connection with a

cantonal act of parliament of 1851 (Gesetz iiber die Einteilung des Kantons Graubiinden in Bezirke und Kreise), leading to the system-

atic and official replacement of the Rhaeto-Romanic place-names by German ones. It was not until 1943 — following the recognition of Romansh as a national language in the year 1938 — that the federal council sanctioned the return of numerous Romansh places to their original place-name (Decision of the Swiss Federal Council). The ‘Rhaeto—Romanic Renaissance’

In the second half of the nineteenth century a genuine revival began in the Romansh

areas, referred to today as the ‘Rhaeto-Romanic

Renaissance’. Poets, philologists and politicians resisted the further advance of German at state, school and social levels by making public appeals or speeches and petitions. Societies for promoting the native tongue were set up, yearbooks, calendars and school books were published, and the old sources of the Romansh language were rediscovered and cultural values collected. One motto was taken from a poem by G.C. Muoth (1844-1906) and read ‘Stai si, defenda, Romontsch, tiu vegl lungatg, risguard pretenda per tiu patratg!’

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(Stand up, Romansch, defend your old language, demand your mentality, be respected!). Another was an exhortation by Peider Lansel (1863-1943) ‘Ni Talians ni Tudaischs, Rumantschs vulains restar!’ (We want to be neither Germans nor Italians, we want to stay

Rhaeto—-Romans). Therewith Peider Lansel defied attempts made by Italian philologists

(Giorgio del Vecchio,

Carlo Salvione,

Carlo

Battisti) to question the independent Latin identity of the Grisons and the self-sustaining language situation of the Rhaeto—Romanic language. Their new consciousness and the mobilisation of the Rhaeto—Romanic people in support of a self-sustaining language were ample encouragement to set up societies for promoting the native tongue and — in 1919 — the ‘Lia rumantscha’ (Romansh League) as an umbrella organisation for the Rhaeto—-Romanic linguistic movement. By means of petitions and motions this institution then decisively influenced the subsequent legal position of the Romansh language, both on the federal as well.as on the cantonal level. From the start its main goals were to awaken and promote the linguistic responsibility; the external advocacy of the interests of the Rhaeto— Romanic minority at the cantonal as well as at the federal level; better recognition of Romansh at state, school and church levels; reroman-

isation of inscriptions, place-names and so on which had been

germanised by state decrees in the nineteenth century. The Constitutions of the Grisons

The new 1854 constitution of the Grisons — like the one of 1820 — did not include any legal regulations of a linguistic nature. The 1880 constitution of the Grisons canton, however, included the following

new Article 50: ‘The status of state language of the three languages of the canton is guaranteed’. The same regulation was included in

Article 46 of the 1892-4 constitution. Final decrees emanating from the cantonal parliament and drafts of a bill were always translated into and printed in Oberland Romansh. While such texts did have official status only the text written in German represented the legally authentic wording. The authenticity of Rhaeto—Romanic law-texts was restricted to the legislation of the Rhaeto—Romanic districts and communities. Petitions and letters written in the Rhaeto-—Romanic

language were accepted by the executive and the administration but were answered in German. With regard to legal proceedings there was one legal regulation of a linguistic nature to be found in Article 14 of the 1858 procedural rules of the cantonal court: ‘The language of the courts of justice is German. Exceptions to this rule require special permission

Romansh

granted

by the court.’

However,

the courts

in the

speaking parts and also the cantonal court accepted

Romansh documents and petitions. The translation costs, and in

ETHNIC GROUPS AND LANGUAGE RIGHTS

98

criminal cases possibly the cost of an interpretor, were, however, the responsibility of the parties. No Romansh texts are to be found in the volumes of the official code of laws between 1860 and 1950. A contemporary reflection on the position of the Rhaeto-Romanic

language in the Grisons can be gained from the reply made by the Chancellor of the Grisons to the ‘Légation de Suisse a Vienne’ (Cantonal Archives of the Grisons, I15 a1). The Chancellor confirmed that a code of laws in Romansh did not exist; that the government and

the cantonal Romansh

administration

themselves

(since this language,

did not correspond

in

unlike Italian, was not a cultural

language but merely a language that had disintegrated into various

dialects!); that only those laws and decrees that were to be submitted

to a plebiscite were translated into Oberland Romansh, though the

communities and districts were at liberty to publish their decrees and

announcements in the official gazette in such languages as they considered to be appropriate. In the legislative assembly and in the

cantonal court speeches could be made in all languages. While there

would continue to be numerous petitions to the cantonal authorities in Romansh,

there would,

however,

be no law and no

decree

governing the languages and their use within the canton. A New Linguistic Consciousness In the first decades of the twentieth century, under the influence of

the supporters of the ‘Rhaeto-Romanic

Renaissance’,

essential

progress towards a better recognition of Romansh was made in various fields, especially in the educational system of the Grisons. For the Romansh people, however, it remained an absolute necessity

to learn German, the main language of the canton. This was for economic and probably also for political reasons.

The growing Rhaeto—Romanic self-awareness and the efforts to make the people conscious of their legal position within the state led to various motions in the Grisons canton between 1900 and 1938. In

general, however, they had little impact at the legislative level.

According to a resolution passed by the Grisons government in 1922, the Rhaeto—Romanic language (alternately Sursilvan and Ladin) was

to be used only on voting papers. Also the ‘Regulations concerning the language to be employed in connection with geographical place-names’ (1934) stipulated that Rhaeto—Romanic representatives should be on the cantonal nomenclature committee. For a long time, however, the equality of status of the three cantonal state languages — as firmly established in the constitution — was consistently practised neither in parliament and government nor on the occasion of legal proceedings. German remained the main language in the Grisons while Italian, and to an even greater degree Romansh, remained of

RHAETO-ROMANSH IN SWITZERLAND

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marginal significance at the various levels of public activities in the

canton. The 1937 procedural rules of the cantonal parliament still

stipulated that as a matter of principle the German language should

be employed for the swearing-in of its members and that the main language for the debates (and for the minutes) should be German. According to Article 33 of the procedure rules, however, ‘each

member is entitled to request translation of motions proposed into the language that he can understand’. On the Way to the Status of a Swiss ‘National Language’ Despite this not very convincing way of achieving linguistic equality in the Grisons themselves, and in spite of the deficiencies in

recognition of Rhaeto—-Romanic at the cantonal level, the authorities

of the canton stood solidly behind the claim for recognition of Rhaeto—Romanic as a Swiss national language in the 1930s. From 1930 onwards the demand emerged for the revision of the federal constitution to give Rhaeto—Romanic recognition as a national language. In 1934 a students’ meeting passed a resolution relating to this and in the course of the same year a member of the cantonal parliament representing the Oberland proposed the following motion: The cantonal parliament, representing the people of the Grisons, instructs the government to submit emphatically to the federal authorities the desire and the wish of the Romansh speaking people for their language — as well as German, French and Italian — to be declared and recognised as a national language.

The member proposing the motion deliberately refrained from demanding the total employment of Romansh as an official language

of the Confederation and left it to the executive to settle the degree of desired actual application of Romansh in federal matters with the directorate of the Lia rumantscha. During the autumn session of the

cantonal parliament of 1934 the motion was carried unanimously. On 21 September 1935 the executive of the canton of the Grisons submitted to the Federal Council a well documented petition made up of the following claims: e

e

‘The constitution is to be modified and Rhaeto—Romanic is thus to

be recognised as the fourth national language’. ‘Weare agreeable —in agreement with the Romansh societies and in accordance with the foregoing observations — to declaring as the official languages of the country German, French and Italian only, taking all the consequences possibly ensuing from this.’

100

e

@

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ETHNIC GROUPS AND LANGUAGE RIGHTS

‘In return, the Swiss Confederation should be prepared to continue to translate certain fundamental laws and the nomenclature should duly allow for this with regard to inscriptions and so on. Relative guiding principles shall be the subject matter of a separate decree’. ‘Where Romansh documents are submitted in connection with

proceedings pending before administrative or judicial courts of the Confederation, the costs for any necessary translation shall not weigh heavily on the party’.

‘It is not necessary that a particular idiom or its written form

should be declared a national language. In case of doubt, the Federal Council, after consulting the Grisons government, shall

decide which of the main idioms is to be chosen for a particular

e

publication, translation, inscription and so on’.

‘The Swiss Confederation is prepared to realise the funds necessary to have the various dictionaries and the dialect dictionary printed successively as soon as they become ready for

publication. The Confederation will continue to effectively assist the Lia rumantscha in its efforts to conserve and further the

Romansh language.’ [Message of the Federal Council on the recognition of Rhaeto-Romanic as a national language, addressed to the federal legislative assemblies, 1 June 1937] The Grisons canton had thereby delegated the language issue to

Berne, in other words to the federal level. The petition submitted to the Swiss Confederation by the Grisons was not primarily comprised of material demands, be they of a direct or indirect nature, but with

non-material imperatives: the fundamental equality of status of Rhaeto—Romanic with Switzerland’s other languages. The determining factor behind the petition was the conviction that such a fundamental recognition would facilitate the struggle for survival

fought on behalf of the endangered Rhaeto—Romanic language.

The Rhaeto—-Romanic Language on the Federal Level between 1850 and 1940 Friendly Gestures

Although the 1848 Swiss federal constitution did not explicitly mention the Rhaeto—Romanic language — the revised 1874 constitution did not make mention of it either — the Confederation from the nineteenth century on repeatedly made allowances for the demands received from the Rhaeto-Romanic bodies and the Grisons government with regard to recognition of the language. In 1872 and 1874 the

RHAETO-ROMANSH

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draft texts for the revision of the constitution were translated into two Romansh versions (Sursilvan and Ladin) at the expense of the Confederation and circulated. In 1876, however, the Federal Council,

using Article

116 of the 1874 constitution,

rejected a petition

submitted by the Grisons that requested that all federal laws to be

subject to a plebiscite should be translated into Romansh Sursilvan. However, the translation of various basic legal texts into Romansh

was subsidised by the Confederation; for example, the federal law on the obligations of citizenship, the prosecution and bankruptcy laws and parts of the Swiss code of civil law. The Confederation also

subsidised the editing of a Rhaeto-—Romanic anthology, the collecting

of material for the Dicziunari Rumantsch Grischun (Rhaeto-—Romanic

dialect dictionary) and the linguistic planning performed by the umbrella organisation Lia rumantscha from 1919 onwards. Despite these occasional gestures Rhaeto-Romanic was not recognised as an official language~and remained outside the Confederation’s legal and administrative authorities. The Rhaeto— Romans were (and in part still are today) obliged to read the federal laws and resolutions in German. To this day the Rhaeto-Romanic

language has not been admitted to the federal parliament. The same applies to the various administrative branches and to the administer-

ing of federal law in the very areas where Romansh is spoken. In those areas public offices and concerns like registry offices, the land register, prosecution for non-payment of debts, bankruptcy law and the commercial register-general, all of which are governed by federal law, are administered in German.

The numerous

bills, written in

German, emanating from these authorities automatically lead to an ever-increasing use of the German language and thus to a creeping germanisation. This evolution became particularly evident in connection with proper names, which, when given on previously printed documents (the latter being in German), were systematically

germanised by diligent officials (having been instructed accordingly)

in the registry offices, military authorities and so. Thus a Rhaeto-—

Romanic Gion Flurin became a Johann Florian and Gion Bistgaun became Johann Sebastian and so on. In 1986, however,

a federal

commission of experts began work on a revision of Article 116 FC (Federal Constitution) with the object of obtaining recognition of

Rhaeto—Romanic at least as a partial official language of the Con-

federation. Since Rhaeto—Romanic is not an official language, parliament still does not admit it to legislative proceedings. Even in the 1920s this deficiency led to a motion in the assembly representing the cantons, requesting voting papers in Rhaeto-Romanic as is recorded on page 47 of the minutes of the federal legislative assemblies of 1928.

However, the voting papers alone contributed little towards the

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ETHNIC GROUPS AND LANGUAGE RIGHTS

participation of Romansh

in the legislation since the Rhaeto—

Romans, now as ever, were not legally allowed to employ their mother tongue when making use of such essential rights as constitutional initiatives, referenda and so on. During discussions at and in

reports of the federal court, one of the three official languages is also employed. It is, however, worth noting the following remarkable passage from a Federal Court report of 1885: Rhaeto—Romanic, although not a national [official] language of the Confederation, is nevertheless a state language, the existence of which

in a considerable part of the Grisons canton cannot be ignored. Though the Romansh population is not entitled to be addressed by the federal authorities in Romansh but, based on Article 116 FC, has to put up with the fact that the Confederation uses one of the three national [official]

languages when addressing the Rhaeto-Romans, the federal authorities cannot possibly ignore the Romansh language to the extent of refusing to receive Romansh documents, especially in judicial matters. It would not do to make the party belonging to the Romansh speaking areas employ a language other than its mother tongue before entering into a constitutional complaint or an appeal in civil matters (a condition possibly in addition to others). Access to the courts would thereby be made more difficult and the constitutional guarantees of the Articles 110 and 113 FC prejudiced considerably. A language being employed on territory of the Swiss Confederation as a living state language, taught at school, spoken in the court room and on the pulpit, and

verified in records certainly bears in itself a right of having access also to the authorities and especially to the courts of the Swiss Confederation.

National Language — but not Official Language In the 1920s and early 1930s the Lia rumantscha in particular, helped by the spirit of the times, did pioneering work in gaining recognition of Rhaeto—Romanic as a state language. As mentioned above, the Grisons government and the Rhaeto-Romans were thereby given an interest in the status of the language and in an act giving symbolic recognition to this but they were not bent on demanding practical

recognition of the language in the workings of the various domains of the state. They did not put a demand that Rhaeto-Romanic should be recognised at least as a partial official language. On several pages the petition explains that, and why the use of Rhaeto-Romanic would be

out of the question, be it in connection with the official collection of federal laws and decrees, be it as a language to be used in the federal

legislative assemblies and the federal court, or in the army. The

cantonal government, being the petitioner vis a vis the Confederation, was concerned about the costs resulting from possible concrete demands almost as much as the federal authorities receiving the

RHAETO-ROMANSH

IN SWITZERLAND

103

petition. The following quotations from the Swiss Federal Council's statement of 1 June 1937 emphasise this: ‘Just imagine what equality

of status of Romansh in this respect would lead to and how this would affect the federal budget’, and ‘The Rhaeto—Romans do not make

demands

in this respect’; and also ‘As for the future, the

Rhaeto—Romans will not demand anything more in this respect’. In agreement with the government of the Grisons canton the Confederation arrived at the following draft wording of the new Article 116 FC: ‘German, French, Italian and Rhaeto—Romanic are Switzerland’s national languages. German,

French and Italian are

declared official languages of the Confederation.’ The first paragraph of this new Article 116 has thus acquired the character of a statement of intent. In a declamatory manner and together with German, French and Italian, Romansh is recognised as a separate and self-sustaining language, but without legal obligation as regards its employment in the administration. In the Swiss Federal Council’s statement of 1 June 1937 this comes out quite clearly: Of course, reality sets certain limits to the actual and legal consequences of equal rights. If we wanted to put Rhaeto—Romanic as an official language of the Confederation on to the same level as the other three languages, this would inevitably entail additional personnel and

expenditure for the federal administration and the federal budget, in other words an expenditure which could not possibly be in an appropriate proportion to the object aimed at. . . . A-recognition of Rhaeto—Romanic as an official language of the Confederation with all the consequences resulting from it would also go beyond what is regarded as fairand necessary. . . . It would therefore be pointless and irrational to add Rhaeto-Romanic to the Confederation’s existing official languages.

New Significance of the Term ‘National Language’

The new article on languages of the federal constitution brought about a change to the meaning of the term ‘national language’. In 1848 the term ‘national language’ was synonymous with the term ‘official language’. The new distinction made by the constitutional law between national and official languages gave new dimensions to the term ‘national language’. ‘National language’ now exclusively

referred to a language that was spoken by a people belonging to the Swiss Confederation. Only the status of official language implied that

the language in question must also be employed by the Confederation when addressing its citizens and that that language must be represented in the various decrees, reports and papers emanating

from all federal authorities and their administration. According to this interpretation made by the Federal Council in its statement of 1

104

ETHNIC GROUPS AND LANGUAGE RIGHTS

June 1937 there was practically no change for the Rhaeto-Romanic language despite its new status as an explicitly recognised national language. With regard to the further demands made by the Grisons government (see above), the Confederation’s attitude remained rather aloof and the latter announced that these demands could not legally be dealt with in connection with the revision of the constitution. Cautious Promises

Basically, it was confirmed that in future the Confederation in its use of the Rhaeto-Romanic language would not retreat from the practice exercised until now. Thus views about the difficulty of having to deal with not one uniform Rhaeto—Romanic literary language but with different varieties having the status of regional written languages did not have to be expressed either. The domestic regulations in the multilingual Grisons canton continued to remain with the cantonal legislation. With reference to translations — ‘for reasons of a practical, that is financial nature’ — voluntary restriction to laws ‘that directly affect the legal life of a people and for that reason must become the intellectual property of the general public’ was declared. The Romansh texts, however, were not to be regarded as legally authentic. Renewed attention should also be paid to the Romansh nomenclature in Romansh speaking or mixed areas of the canton with regard to land registers, cartography, timetables, official railway guides, official placards and information given by the post office, the customs and the army administration according to the Federal Council’s

statement

of 1 June 1937. In its statement

the Federal

Council also declared its fundamental willingness to have official documents — written in Romansh

and submitted to government

offices and judicial authorities of the Confederation — translated,

where necessary, without charging the parties. Furthermore, the

printing of the dictionaries and of the dialect dictionary should be

subsidised ‘within tolerable limits’. The debates on the revision were turned into an ‘hour of consecration’ and into a patriotic manifestation in parliament. The comments made by the President of the representative assembly were symptomatic following a thundering

speech made by a Rhaeto-Romanic member of the assembly recorded in the minutes of the 1937 winter session assemblies of the

federal legislative: ‘We have allowed Mr Condrau our honourable

member for the Grisons to make his speech in Romansh. Although this is contrary to the rules and the resolution to be passed now I

would have thought it to be wrong in this case to conform to the rules. I just hope this does not-find followers and that the House will not

resound with all the languages of the world’. In the plebiscite of 20

RHAETO-ROMANSH IN SWITZERLAND

105

February 1938 Rhaeto—-Romanic was then with 574 991 votes for and 92 827 against overwhelmingly recognised as a national language. German,

French and Italian remained the Confederation’s official

languages. Demonstration against Nationalist Trends across Switzerland’s Borders

The linguistic—political campaign of the 1930s, which was highlighted in the federal plebiscite of 1938, presented the ‘Rhaetoromania’ with an excellent opportunity of doing public relations work for itself in Switzerland and abroad. The political and social discussions on the subject of ‘Rhaeto-Romanic — national language’, gave the Swiss Confederation the opportunity of discussing fundamental questions with regard to comprehension of the state and Switzerland’s attitude towards the nationalist trends to be observed across its borders. The repulsing of Italian irrendentism and-German National Socialism played a decisive part in these discussions: “The Swiss Confederation would owe its character as a nation to other factors than to the common language. It represents much more a spiritual community,

supported by the will of peoples speaking different languages to live together as one nation and to preserve and to defend the freedom and the unity earned in a historical common past by making common cause’, according to the Federal Council’s statement of 1 June 1937.

One of the fundamental legal maxims behind the Swiss national

understanding would lie with the principle of equality of rights for

the national languages. De facto, however,

the

constitutional

recognition

of Rhaeto-

Romanic as a national language did not bring about any real equality

of rights either. It must be admitted that the possibilities of employment of the Rhaeto-Romanic language on a federal level

remained very much restricted. Add to this that the few existing

possibilities of extending the use of the Rhaeto—Romanic language at the Confederation level (such as the translation of federal laws) were

not turned to advantage in the decades following the 1938 plebiscite. In the late 1970s and in the 1980s, new demands were finally made.

Following the creation of a common literary language and based ona clear concept with regard to linguistic planning, a new basis for an increased presence of the Rhaeto—Romanic language at Confederation level was formulated. Nevertheless, the conceptual, solemn declaration of 1938 as a symbolic act bore fruit. A New Dimension: Territorial Principle

On a linguistic—legal level the recognition of Rhaeto-Romanic as a

106

ETHNIC GROUPS AND LANGUAGE

state language brought,

however,

a new

RIGHTS

aspect, hence a new

dimension into the discussions: the ‘jus soli’ or ‘territorial principle’: ‘Our people must finally claim the authority over its territory, the jus soli (the right to its own soil), which, although not being written down in any laws, is nevertheless recognised and practised throughout Switzerland, our native country; in other words, the right to

request that everyone recognises the supremacy of the language of the territory of his domicile,’ as Otto Gieré put it in a 1934 lecture.' Based

on

the new

Article

116, Federal

Constitution,

the Lia

Rumantscha then proposed in its 1947 petition to the Federal Council of the Swiss Confederation a ‘law for the protection of languages’ for the Rhaeto—Romanic areas: ‘Each national language has got its specific territory. The Rhaeto—Romanic “linguistic map” should also be given its precise boundaries and the resultant Romansh territory ought to be treated as such.’ This territory needed to be given a kind of ‘language guarantee law’ preventing desertion from RhaetoRomanic to German and declaring the use of Romansh within the above-mentioned boundaries as compulsory: “The situation would be different if the area recognised as Romansh territory could be declared a ‘‘Romansh zone’, so to speak, by the state. People migrating from the German speaking part of Switzerland to this

“Romansh zone” would then take greater interest in learning the local language, and through time they would thus be assimilated by

the Romansh community.”

Thus, based on the new

Article 116, Federal Constitution,

the

‘Rhaetoromania’ now took part in the discussions about the territorial principle as an instrument of the Swiss language policy. These discussions are continuing at present. From Article 116, paragraph 1, Federal Constitution, the Federal Court has again and again made the

interpretation that the traditional linguistic structure of Switzerland and the homogeneity of the language areas would therewith be guaranteed. Numerous experts in linguistic law* have concerned themselves with this problematic subject. Notes 1 2 3

See Gieré (1935), p. 208. See Lia Rumantscha (1947), p. 30. See, for example, G.-R. Gieré (1956), Hegnauer (1947), Malinverni Schappi (1971), Thiirer (1984) and Viletta (1978, 1984).

(1988),

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RHAETO-ROMANSH

IN SWITZERLAND

107

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RHAETO-ROMANSH IN SWITZERLAND

109

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