Pro Memorie - Current Issue

The question whether or not the sea can be owned or controlled has occupied the minds of many over the centuries. The discovery of America by Columbus made the questions of ownership of the sea and how regimes to govern the sea could be created and managed gaining importance on a global scale. The historiography of the law of the sea is mostly focussing on the ‘battle of the books’ dominated by the publication of Mare Liberum (1609) by Hugo de Groot (Grotius) and John Selden’s Mare clausum (1635). This article puts this debate in its wider temporal, that is medieval context by arguing that the concept of the free sea was perfectly compatible with the adjacent or territorial sea both in legal practice and principle. The idea of the free sea, defended and made explicit by Grotius, was not new but originated in Roman law and its medieval interpretations. Rather than the free sea, mare clausum was the new contribution of early modern thinking on the law of the sea. The concept of mare clausum had been shaped by the division of the world’s oceans among Spain and Portugal based on the papal bull Inter Caetera (1493) and the treaties of Tordesillas (1494) and Zaragoza (1529).

In The Hague there was a Saint Yvogilde, mentioned 1510-1560. It was the craft guild of lawyers, solicitors and bailiffs, connected to the Court of Holland. This court was located at the Binnenhof. There was also the Court Chapel, which included a Saint Ivo chapel mentioned since 1488, and a Saint Ivo altar, mentioned from 1481. The relationship between guild, chapel and altar is unknown. More insight into the relationship requires further targeted research. After the Reformation (1572-1574) nothing more can be found about the Saint Ivogilde.

In the period 1811 to 1867, the Courts of Assizes were in principle competent to try rapes and indecent assaults. An examination of the judgments made by the Court of Assizes of the Leiedepartment/the province of West Flanders in this period shows that in this period 229 people were accused before that Court of one or both crimes, but only 143 of them were punished for one or both crimes. In addition, 27 of those 229 accused persons were punished for a completely different crime, which was usually the misdemeanor of an outrage against public decency, and 59 were acquitted. The 143 people punished were mostly men (only one woman) who were between 18 and 35 years old and worked in frequently occurring professions in both rural and more urban areas. None of them practiced an elitist profession such as a gentleman farmer, doctor, notary, lawyer, or public officer. In accordance with the legal provisions, the Court of Assizes punished more severely 14 legal fathers, one grandfather, two stepfathers, a master guest in charge of training weavers, five teachers, three wage earners who were employed by someone who exercised authority over the victim and all the persons who provided each other with mutual assistance in carrying out one or both crimes. A majority of victims (202 out of 286 or 69.8%) were girls under the age of 14 or 15 respectively. The 46 women over the age of 15 formed the second group and the 27 boys under the ages of 14 and 15 the third group. Men over the age of 15 were hardly victims. No reason was almost ever given for the acquittals. Regarding the two doctors who were acquitted, one may wonder whether this happened due to a lack of evidence or because of class justice.

Early on in the Second World War, a third of Belgian mayors left their post, escaping German occupation. Many were replaced by members of the Vlaamsch Nationaal Verbond with the support of the occupier. After the War, seven such ‘wartime mayors’ from West-Flanders were charged with endangerment of the State’s external security and finally tried on appeal before the Ghent court-martial. Their criminal files provide insight into the functioning of the military courts and the sometimes uncertain legal position of the defendant. The court’s reasoning was not always crystal clear, as judges only had a limited obligation to explain their decisions. Additionally, political collaboration was interpreted to incriminate a wide array of facts and courts encountered challenges differentiating denunciation from military collaboration. Applicable law was printed in advance on judgements, though this did not prevent all mistakes in the implementation of numerous decree-laws. Nevertheless, this could lead to the defendant’s benefit.