Pro Memorie - Volume 23, Issue 1, 2021

Zacharias Huber (1669-1732) evaluated in the revised Heedensdaegse Rechtsgeleertheyt arguments, hitherto unknown, which were brought forward in a case, pursued before the Court of Friesland and decided on December 14^th 1718. The case dealt with the ownership of a box with gold, found on the beach of Schiermonnikoog in 1710 and which came from the ship De Witte Haas, shipwrecked off the coast in 1674. Newly found civil records show that Maria Wilree (1667-1729) from Amsterdam started the procedure to recover the box with gold, because it purportedly belonged to her father Dirck Wilree (1636-1674), director-general for the West India Company in Guinea and who died in the shipwrecking. She took legal action against Henrica Helmhout, regent of Schiermonnikoog and receiver of wrecks, and Gillis Vermeersch, representative of the West India Company. Only Vermeersch was successful in his argument, which he based on the instructions of the Company: it was forbidden to transport unregistered private goods. Such goods forfeited immediately to the Company. Consequently, Wilree claimed for the Company ownership and possession of the box with gold. Helmhout claimed to be the owner by prescription. Their arguments appear not to have been convincing.

In 1724, the prosecutor-general of the Grand Council of Malines, the supreme court of the Austrian Netherlands, opened a judicial investigation into the marquis of Westerlo, one of the highest aristocrats in the Low Countries. It was alleged that he had abused his power against a peasant from Herselt, one of the villages in the marquisate of Westerlo. The investigation ultimately led nowhere, but its records do reveal frequent and far-reaching abuses of power against the inhabitants of the marquisate. Moreover, they show that the villagers were not powerless but could organise themselves in various ways against their lord’s coercive actions. Additionally, the case illustrates the gradual and growing penetration of the state apparatus into the administration of local seigneuries. Finally, this essay demonstrates the need for more research on the relationships between lords and villagers. This is a neglected field of inquiry although the majority of the population in the Austrian Netherlands lived in the countryside, large parts of which consisted of seigneuries.

This contribution deals with the softening of sentences by the Assize Court of West Flanders in the Dutch period (1814-1830). It is successively examined how the judges in this Court made use of a number of provisions in the Code pénal of 1810 to pursue their own sentencing policy, secondly, how the same judges, by re-qualifying the facts that the public prosecutor had brought to them defendant, succeeded in imposing a lesser sentence than that claimed by the prosecutor, third, how those same judges made use of the decisions of September 9, 1814 and January 20, 1815, invoking extenuating circumstances, to impose a lesser penalty than that determined in the Code pénal of 1810 and finally how King William I converted some death sentences into lesser punishments with his right of grace.

The Belgian Constitution guaranteed political liberty, exemplified by the mandatory competence of the jury for judging political and press offences. However, the constitution did not literally mention quasi-delicts. In 1861, liberal statesman Charles Rogier was insulted by the ultramontanist Catholic newspaper Le Journal de Bruxelles. He sued the newspaper’s printer under tort law, and obtained a considerable amount of damages, bypassing the jury. Progressive radical lawyer Lucien Jottrand, former member of the Constituent Assembly, argued at length that the constitution exclusively reserved competence for both civil and criminal liability to the jury. The Brussels Court of Appeal and the Court of Cassation rejected this reasoning and insisted on the superior natural law-origins of tort law. Yet, this decision created a risk of private censorship, well documented in the press and in private archives on the legal battle around the Journal de Bruxelles.