Tag Archives: Legal procedure

Guidance to Early Modern legal procedure in the Dutch Republic

Cover "Procesgids Hof van Utrecht"Finding your way as a party or an advocate in trials in Early Modern Europe could be a daunting task. In our century some legal historians consider it important to offer some guidance to the way old courts worked. The Society for the History of Old Dutch Law has created a series called Procesgidsen with already nine volumes since 2000. This month appeared a guide written by J.M. Milo and E.G.D. van Dongen for the former provincial court of Utrecht [Procesgids Hof van Utrecht. Hoofdlijnen van het procederen in civiele zaken (Hilversum 2018; Procesgidsen, 10)]. A book presentation was held on June 8, 2018 in the inner city of Utrecht at the former building of this court, now one of the locations of Het Utrechts Archief. This post looks at the book presentation and of course at the new guide itself.

Ten guides

The former court of justice at Utrecht

Kaj van Vliet (Het Utrechts Archief) opened the session with a quick history of the historical premises of the old court. The Court of Utrecht was founded in 1530. At first its seat was close to the Habsburgian fortress Vredenburg (“Castle of Peace”). When the Dutch had freed themselves from the Spaniards, and after the demolition of the Vredenburg castle in 1579 the close association with the Spanish powers and authorities was no longer necessary or sensible. In 1580 the Reformation definitely took over in Utrecht. The court could move into the buildings of the former Benedictine St. Paul’s abbey. In the nineteenth century city architect Christiaan Kramm devised the facade still seen today. I show a part of the facade in the very banner of my blog. In the late twentieth century the rechtbank in Utrecht had to deal with a kind of diaspora with at least fifteen buildings. Some fifteen years ago a new building finally solved problems of space and coordination. I showed this building in my post on Lady Justice’s square.

Paul Brood (Nationaal Archief, The Hague), the editor of the guide series, invited us to imagine the fragmentation of the Dutch Republic which becomes very visible when you think of the different territories you will cross when travelling from the north, let’s say Groningen, to Holland. You had to face different jurisdictions, too. Brood underlined the way Marijke van de Vrugt wrote a draft for the Utrecht guide. At least two other guides are being prepared for the Society for the Study of Old Dutch law; these, too, will be published by Verloren. Emanuel van Dongen (Law School, Utrecht University) looked at one of the cases used in the guide to show the proceedings of the court. This case involved a charge of rape against lawyer and history professor Pieter Burman (1668-1741) in the early eighteenth century. The case kindled great interest among contemporary pamphleteers. Milo and Van Dongen had already discussed this case in their article ‘Echte mannen, woorden en daden. Eer en schuld voor het Hof van Utrecht in de achttiende eeuw’ [Real men, words and actions. Honour and guilt at the Court of Utrecht in the eighteenth century], Pro Memorie 19/2 (2017) 160-175. Kees van Schaik, a retired barrister who has mastered in three decades as few others the archival records of the Court of Utrecht (Het Utrechts Archief, finding aid (toegang) no. 239-1, Hof van Utrecht, 1530-1811), looked at a sixteenth-century case involving a lease of land by a farmer who had signed on purpose a very favorable contract which gave him space to escaping even these conditions.

Philip Langbroek, professor of justice administration and judicial organisation at Utrecht University, mused about the legitimation of Early Modern lawyers and their impact on law and justice. Did the overlap between the judicial elite and other elites damage the actual proceedings? This question is interesting, but Langbroek did not attempt to look at actual Early Modern cases, nor did he focus on the nomination of judges and lawyers admitted to the bar. J.O. Zuurmond, a judge at the current Rechtbank Midden-Nederland, put the proceedings of the second eighteenth-century case discussed in the guide – concerning an obligation to pay goods –  into the current way such cases are dealt with now by Dutch courts under new regulations – and computer systems – for civil procedure. The role of written documents will diminish radically. Finally, Michael Milo gave the first copy of the guide to E. Messer, vice-president of the Rechtbank Midden-Ned4erland

A new guide to the old Court of Utrecht

The volumes in the series Procesgidsen follow an established pattern of an introduction to the history of courts and the applicable laws, chapters about the jurisdiction, the judges and staff, the way proceedings in cases run according to the stilus curiae, the instructions and ordinances for court proceedings; a chapter or chapters showing one or more cases, sometimes also with an appeal procedure, and a guide to archival records and a concluding bibliography. The guides are mostly restricted to civil procedure. In this guide attention to archival records is shown by the effective use of images of procedural documents, but there is little guidance to the actual use of the records for the Early Modern court of Utrecht. However, all core elements of the series figure in this book, and the good use of photographs of legal documents is surely an asset, to be repeated in the upcoming volumes. Key passages of these documents have been translated which inter alia gives you an opening to Dutch palaeography in the way I lately discussed here.

Until recently researchers dealing with the former Court of Utrecht could benefit in particular from a book by Willem van der Muelen, Ordonnantie ende instructie op de stijl ende maniere van procederen, voor den hove van Utrecht, zoo in civile als crimineele zaken (…) (2 vol., Utrecht 1706-1707; online). He published a similar work for the city court, Costumen, usantien, policien ende styl van procederen der stadt, jurisdictie ende vryheid van Utrecht (…) (Utrecht 1709; online, Hathi Trust Digital Library). The phrase Costumen, usantien, policien ende stijl van procederen, to be translated as “Customary law, policy and procedural ordinance”, was used since the late sixteenth-century for similar works. The library of Het Utrechts Archief is home to a number of copies of these editions.

Sometimes a book or article can help you to overcome justifiable doubts about the feasibility of archival research into Early Modern courts. The series of books with essays on medieval ecclesiastical courts, edited by Charles Donahue Jr., did even more by inviting you to compare courts. The Dutch series Procesgidsen helps you to get quicker to the themes and subjects you want to study, and they help you to put these courts into perspective.

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Creating convincing arguments in court

Banner image of two muses, Themis and ClioLately I was gently pressed to add a particular blog to my blogroll. I argued that it does not deal primarily with legal history, although it is in many respects a most valuable blog. Even after a second plea, accompanied with a nice variant on Ceterum censeo… I still stick with my argument, but in fact this blog had already been included in my blogroll…  On closer inspection of the links now present I also looked at the growing number of online journals in open access dealing with legal history. The latest issue of Clio@Themis [8 (2014)] deals with the history of legal argumentation, a theme which has had my interest since many years. I also spotted the announcement of an upcoming scholarly event in May on this subject. Nomôdos, the blog of Clio@Themis, is most useful in tracing new publications and announcements concerning legal history in France. Thus it is a source for my congress calendar, and of course it is listed in my blogroll. These two subjects give me enough materials for this post.

Arguments in courts

Clio@Themis is a French scientific journal with most of its articles in French, with abstracts in English added to them. The journal has a tradition of including as a bonus a French version of classic legal articles. Its latest issue called L’argumentation au cœur du processus judiciaire skips this feature. Seven articles deal with legal argumentation in court proceedings. Two other contributions are only loosely connected with the general subject of this issue.

Logo CHJ Université-Lille 2

Catherine Denys and Naoko Seriu introduce the theme of this number and elucidate briefly the subjects of the seven articles which originated at three days of scholarly encounters around this theme in 2012 at the Centre d’Histoire Judiciaire (Université Lille-2). They describe a shift from viewing legal argumentation solely as part of legal doctrine to an approach akin to the way philosophers, sociologists and linguists deal with speech acts. The history of the judiciary and legal practice is here the primary field of investigation. The use of arguments is seen here as a part of a strategy to get favorable results in court.

The focus of all articles is on three European countries during the Early Modern period, with the exception of two articles dealing with subjects from the nineteenth and twentieth centuries. In the first two articles the sixteenth century comes into light. Alain Wijffels discusses procedures claiming revisions of earlier trials at the Grand Conseil de Malines, the highest court of the Habsburgian Low Countries. The appeals for revision should be allowed in cases of factual errors (error facti) and in principle not for any legal error (error iuris), but in actual practice both kinds or error could be redeemed. The interesting thing is how lawyers at Malines argued about this state of affairs.

Marco Cavina deals in his contribution – in Italian – with the views of Carlo Ruini and Andrea Alciato concerning the different types of legal counseling in consilia. Alciato sketched a model with different approaches used by lawyers. Some went for subtle reasonings (subtilitates), others for the archetypical Renaissance – but essential medieval – abundance (copia) of allegations from Roman and canon law, and a third group imitated the brevitas of the classical Roman lawyers and their compact way of expressing opinions. Alciato frowned upon publishing consilia for several reasons, but his own contributions to this genre, too, were posthumously printed.

Isabelle Arnal-Corthier looks at materials sometimes presented to the Parlement de Toulouse in criminal appeal cases between 1670 and 1700. Instead of just a hearing of the accused for an appeal in criminal cases as punctuated in the royal ordinance of 1670 barristers often brought also a lettre de cassation to this court. The defense adduced in these cases mainly arguments about the competence of lower courts, insufficient evidence or irregularities during judicial procedures.

Yet another French court, the Parlement de Tournai and its third chamber in the late seventeenth century, figures in an article by Jacques Lorgnier who deals with cases concerning property rights and conflicts about the cost of church repairs. This foray into actual argumentation leads him to the hypothesis that the justiciables, the people going to court and their legal representatives, trusted the workings of rational arguments in the face of solid proofs within the framework of legal procedure.

Logo ADN

At this point I would like to mention the great resource created by legal historians at Lille for doing research into the history of the Parlement de Flandre. In the database ParleFlandre you can find more than 30,000 dossiers from the série 8B1 at the Archives Départementales du Nord (ADN) in Lille. Lorgnier uses cases from another series of dossiers at the ADN, the série 8B2. For the history of the Low Countries the archival collections at the ADN contain many important documents. At Fontes Historiae Iuris, the virtual portal at Lille to digitized resources concerning French legal history, is a section with further resources for the Parlement de Flandre.

Naoko Seriu looks at a scarcely known crime at the end of the Ancien Régime, the illegal sale of military goods by deserters, in particular uniforms. Records of trials survive in which individuals were charged with buying these illegal uniforms or the vendors themselves were charged with this crime. Seriu compares the verbal strategies used and the particular differences in approach to exculpate themselves. I could not help noticing that the examples of cases stem mainly from Brittany, in fact from just one modern département, Ille-et-Vilaine. A comparison with other regions might be useful. At the EHESS in Paris Seriu studied with Arlette Farge, a French historian who has devoted much attention to the way stories are told in historical sources, recently in Condamnés au XVIIIe siècle (Lormont 2013).

Forays into the twentieth century

Bruno Debaenst (Ghent) brings us from France to Belgium and much closer to the twentieth-first century. In his contribution (in English) he has studied trials concerning accidents during work in around Mons between 1870 and 1914. Using dangerous machinery, imperfectly prepared surroundings, shortcomings in labor organization, and workmanship not up to demands were among the arguments heard around these cases. In these years the Belgian code of civil law still was a virtually unchanged version of the French Code civil, with scarcely attention to actual circumstances in an industrial society. Debaenst describes also the use of reports by experts, criminal investigations and testimonies. In the face of inadequate means to deal conclusively with liability defendants had much opportunity to evade responsibility for what happened in their firms, thus reaffirming the gap between workers and patrons.

In the last article of this special Frédéric Chavaud brings us to familiar scenes from modern crime series on television. He looks at the use of emotions between 1880 and 1940 as arguments at the Cour des Assises, the highest criminal court in French departments. Tears, laughter and fear were not only used by barristers and defendants, but also by others in court. Studying the history of emotions is not without its pitfalls, and Chavaud rightfully points to some pivotal studies. He uses mainly contemporary public reports about trials, and not the actual dossiers of the cases. These reports do convey a vivid image or proceedings, but one can suspect that their authors also follow well-known tracks to please the expectations of their readers. Of course it is exactly important to notice such bias and detect changes in them. Emotions can and could break rational arguments and reasonings, specially when directed at juries. Chavaud clearly focuses on the contemporary perception of emotions, and he rightly mentions studies about emotions in court published between 1920 and 1940.

The range in time of this special is pleasing, from the sixteenth to the twentieth century, and we read about both civil and criminal law. The geographic focus, however, is on France, even when admittedly you get a most varied view of French legal history. Luckily the Low Countries, Belgium and Italy add a European dimension. Lorgnier is the only author to mention the use of topical argumentation. I am afraid it is not quite possible to expand here very much on any of the articles presented here. You can always wish for more, and therefore I invite you now to the second section of this post about a congress where you might pursue this aim very soon.

Studying legal controversies

Banner Rennes 2015

La controverse. Études de l’histoire d’argumentation juridique [Controversy. Studies on the history of legal argumentation] is the title of the coming Journées internationales, the yearly congress organized by the Société d’Histoire du Droit. This year’s congress will be held at Rennes from May 28 to 31, 2015 with the Centre d’Histoire du Droit of the Université de Rennes-1 acting as its hosts. You might want to have a good look at the generous links section of their website and at its own digital library. Rennes is the capital of the département Ille-et-Vilaine mentioned above, and participants might want to visit the Archives départementales. The call for papers is still active. Proposals should be sent before March 10, 2015, and this is the closing date, too, for registration (mail: shd.rennes@gmail.com). Rennes is well worth visiting, in particular for the building of the old Parlement de Bretagne. Saint-Malo and the Mont-Saint-Michel are not far away.

Young scholars, too, get a chance at Rennes. There will be a atélier doctoral organized in cooperation with the Association française des jeunes historiens du droit, a society of young legal historians founded in 2013. You can send your proposals until March 30, 2015 (mail: assofjhd@gmail.com).

The congress wants to approach controversies both as a phenomenon within the territories of law, be it the judiciary, legislation or doctrine, and as historical cases of conflicts about a plethora of possible subjects. What was the impact of certain schools of thought? Which impact had other disciplines on legal theory and practice? It is perhaps necessary to keep in thought that the international dimension of the Journées was and is traditional that of the French-speaking world at large, the francophonie. The blog like website at Rennes nicely mentions the exceptional use of English for any communication. In a region with many British and Dutch visitors one might expect the start of a change to that tradition.

This post with a French flavor should also remind readers from the Anglophone world that those speaking and writing English are not the only possible center of the world of science. It can be truly useful and illuminating to know about different approaches in other countries, to practice them yourself or to use your approach on foreign ground in order to see how universal it really is. Anyway, I have tried to convey something of my joy in discovering this special of an online legal history journal, and I might well do this here again. In my blogroll or for example at Nomôdos or the blog of the European Society for Comparative Legal History you can choose from many online journals in the fields of legal history.