Pro Memorie - Volume 24, Issue 2, 2022

The members of the Holy Roman Empire (emperor, monarchs, classes and cities) gave in 1530 order to the Imperial Chamber Court (the Reichskammergericht) not to accept appeals in cases of capital punishment. The traditional injunction of these appeals should be respected. The initiative was taken by the prince-bishop of Liege, Everardus cardinal Van der Mark. But was there really since 1495 in the country of Liege a tradition to appeal in cases of capital punishment, as the bishop claimed in 1530. Research in one of the files gives the author of this article the affirmation of this practice.

In the case Harderwijk vs Hagendoorn (verdict 30 July 1810), Hagendoorn’s suitcase was stolen during its transport by Harderwijk from Austerlitz to Utrecht. The suitcase had been fixed with ropes to the coach. The question was whether the carrier had exercised sufficient care by that. Harderwijk based the level of care of his son, who had transported the suitcase, on the contract of mandate: it required normal care and thus he was not liable for a coincidence in this case. Hagendoorn, on the other hand, pointed to a more severe form of liability, namely that of a carrier in the course of his profession (quasi-delict). That implied that, so Hagendoorn said, that the carrier was liable, even if he was not at fault. He should have used material that would prevent theft. But Harderwijk argued that it was custom, viz. daily practice, that carriers in the city of Utrecht used ropes, not chains. By order of Councillor De Brueys, this practice was proven by representatives of the guild and Harderwijk’s argument was accepted. In this case, customary law set the express regulation of written law aside.

Between 1643 and 1713, many cities in the economic core areas of the Dutch Republic introduced local ordinances concerning desolate boedels, insolvent estates. This article compares the contents of a substantial number of such ordinances and explains these legal innovations as part of broader patterns of institutional change. The introduction of majority compositions in this period substantially improved the chances for economic recovery of insolvent debtors. It also formed a violation of the creditors’ property rights. This article shows how this was compensated for by a much improved and stricter supervision of insolvency procedures and curators by local authorities. It is argued that these legal and institutional developments should be seen as part of an important shift in public mentalities: local authorities all over the early modern Dutch Republic sought to maintain public order and protect the common good by regulating ever more aspects of society.

The law of neutrality evolved from 1776 to 1870, but not in a linear way. Enlightenment saw neutrality as an autonomous choice of a sovereign polity. The First League of Armed Neutrality (1780) and the Declaration of Paris (1856) can be seen as landmarks in the rise of the free ships/free goods-principle and the promotion of free trade. The French Revolutionary and Napoleonic Wars brought a regression. The British restrictive position before 1856 was starkly criticized. Even in the late 1880s, the lack of codification and unity in the law of neutrality was striking: national case law, criminal law and ad hoc neutrality declarations remained essential sources for individuals and states alike to interpret the seemingly candid and simple twin obligation of impartiality and abstention. This period also saw the birth of the malleable concept permanent neutrality, imposed or guaranteed by the European Great Powers.

Even after 1867, date of the new Belgian criminal code, several child murders were prosecuted before the Court of Assizes of West Flanders. The victims were usually children out of wedlock and the perpetrators usually their unmarried mothers. Although the criminal law still allowed this, none of those perpetrators were punished with the death penalty. A life-long forced labour was then the highest punishment, but was then also imposed very exceptionally. Forced labour of 7 to 15 years was then the most commonly imposed punishment.

Because there is nothing in the preserved records about what the accused or their lawyers stated during the sessions of the Assize Court and because the juries never motivated their positive or negative verdict on the guilt of the accused, the question why the accused of a child murder was found guilty or innocent and then punished or acquitted, never can be answered with one hundred percent certainty. More specifically, in acquittals, careful consideration should be given to whether the accused was acquitted because the jury did not consider the material or moral element of the infanticide to be proven. Blindly claiming that all mothers charged with infanticide were acquitted because those mothers were in a state of insanity or psychological distress is an injustice to the jurors and history.