8

Access versus influence: peasants in court in the late medieval Low Countries

Maïka De Keyzer

Meet Henricx de Proest, Jans Huysmans and Gielis van Ysschot, peasants living in sixteenth-century Isschot in the Campine area of the Low Countries. In 1541 Henricx and his associates were confronted with an infringement on their communal rights on a certain common heathland located in the village. While they deemed their property rights to be lawful and exclusive for the community of Isschot, the community members of the neighbouring Grootheze claimed communal grazing rights as well.¹ What options did Henricx de Proest and his neighbours have to protect their communal rights and solve these types of conflicts? What were their odds of winning the case? This chapter will explore the judicial venues late medieval peasants had at their disposal and how they were able to use different judicial strategies to solve their issues.

It has been stated that such conflicts were predominantly solved within the community and outside of the formal judicial circuit.² Two main options to solve conflicts outside of court are distinguished. Firstly, by relying on symbolic action, social pressure or even violence. According to Maarten van Dijck, costs relating to taking a grievance to court were too great. They could add up to a third of a master mason’s annual wage in the city of Maline. This forced middling and poorer households to rely on violence and alternative forms of justice.³ Others have argued that extra-legal actions were not necessarily the only way out for poor peasants, but a genuine choice and a preferred strategy of negotiation or even community building.⁴ According to Garnot, high-level courts frightened most members of society because of their elitist character, high fines and torture practices.⁵ Therefore, most people turned toward semi-institutional or completely informal forms of justice. What has been labelled ‘infrajustice’ was the second option available for premodern peasants. Here social mediators often performed the function of judges, lawyers, notaries or investigators. The same type of conflict resolution courts could provide was given by their own community members, without the legal fees and binding punishments. Compromises and alternative settlements to cash fees or fines were the result, protecting or even enhancing the social cohesion of the village community.

Increasingly, however, the ability of the middling sort of people, such as skilled labourers and independent farmers, to litigate in formal courts, and especially royal or sovereign courts, is highlighted. Even though urban groups were often overrepresented, peasants and rural community members were part of these groups of modest litigants. According to Kagan, the development of royal institutions, such as courts, fitted into – and even enhanced – a legal revolution that was on the rise in sixteenth-century Spain. In local tribunals peasants had little chance in defending their interests against their seigniorial lords or other powerful elites. In contrast, the royal courts had a reputation for independence.⁶ There was an important demand from humble and more fortunate subjects for royal justice. According to Robert Stein and le Bailly, the rise of sovereign institutions in the Low Countries and France, such as the Council of Brabant, was not the result of ducal ambition alone, but arose from an interaction of bottom-up demand and top-down interests.^7,8

These studies investigated the rise of litigation in formal courts from the courts’ rather than from the peasants’ perspective. They measured the rise of court cases and deducted the amount of ‘middling sorts’ of people or rural subjects contributing to this rise. Instead, in this chapter an analysis of the different conflict resolution mechanisms of peasant communities in the late medieval Low Countries will be presented. In order to analyse the court practices of peasant communities, a specific set of civil conflicts and region was selected. Within premodern peasant communities conflicts about land, access to land or communal rights were among the most important disputes, apart from debt and inheritance issues. Instead of giving a full overview of all civil suits, conflicts about property rights were selected in order to explore peasant agency in conflict resolution. By the later Middle Ages, pressure on communal rights was on the rise in north-western Europe and the Low Countries. Rural elites, lords, disgruntled peasants and urban investors increasingly tried to change, diminish or eradicate local custom or privileges regarding the commons.

How did the peasants in the Campine area of the North Antwerp region within the Low Countries manage to defend their interests vis à vis the political elites or between opposing interest groups? What kind of conflict resolution mechanisms did peasants have at their disposal in order to settle their disputes? Did they have to rely on informal and local institutions, or did the Campine peasants resort to a wide range of conflict resolution mechanisms? In addition, the question of how the choice for one form of justice over another was made will also be discussed. The focus here will be on the way justice was engaged with by the Campine peasants. Finally, the question of which arguments and strategies were used by the different interest groups in order to win a case will be examined.

Jurisdictions: showing the variety of conflict resolution mechanisms

The Campine area was a traditional peasant society, dominated by communal property and strong communal rights. The case study I selected is the region to the north-east of Antwerp, on the boundary between what is today Belgium and the Netherlands. The Campine area was colonised late in comparison to the manorial core regions of the Low Countries, leading to weak manorial lords, possessing barely any manorial privileges. In addition, only a handful of farmers could be labelled as rural elite. The majority of the society existed of smallholders who did not possess more than five hectares of land.⁹ The Campine area was the boundary zone of the Duchy of Brabant, with the Counties of Gelre and Holland to the north, that had only been annexed by the thirteenth century. Because of this power struggle between the Duke and the local feudal lords, the local landlords lost most of their political power. The manorial control over the village courts and local management was reduced and strong privileges to control village affairs were given to the village communities. This process was started by the Dukes of Brabant, but had to be followed by the manorial lords themselves, in order to prevent social unrest or the immigration of their peasant subjects. In addition, formal charters or oral agreements were given by the Dukes and manorial lords to the small peasants, granting them the use rights and control over the commons (predominantly common heathland and a few common hay meadows).¹⁰ In nearby Flanders rural communities were less fortunate. Village charters granting control over village affairs were much less common and communal property had already begun to decline by then, to be almost fully eradicated, apart from some common rights, by the fourteenth century.¹¹ Nevertheless, the Campine area was not a complete anomaly in the Low Countries, and especially not in the continent. Commons and strong collective rights were dominant as well in the Veluwe, Drenthe and het Gooi, in the Walloon part of Belgium and large parts of the neighbouring countries.¹²

Disputes regarding access to the commons were frequent and could be long lasting. Because of urbanisation, growing commercialisation, rise of rich, elite farmers and pressures on extensive agriculture due to population growth, traditional communal rights were under reevaluation by a range of different interest groups.¹³ This was definitely no Campine phenomenon. Small-scale quarrels and disputes concerning common rights and communal property were abundant throughout Europe during the later Middle Ages, even without parliamentary enclosures and enlightened politics.¹⁴ Larger villages possessing charters actively tried to eliminate dependent hamlets by denying them access to the commons so as to limit the pressure on the landscape, as had happened in the village of Isschot. In addition, a select group of large tenant farmers were often treated as outsiders, meaning they were frequently on the verge of losing their claims to communal rights. Next, despite the absence of a true undermining of common property regimes and the endurance of the system until the eighteenth century, attempts to alter the system and at least privatise and enclose some parts of the Campine commons were real.¹⁵ Although piecemeal enclosure was tolerated by village communities, privatisation and enclosure hindering other community members’ rights or threatening the common property regime in general were often greeted with resistance.¹⁶ This in return led to a wide variety of conflicts, varying in terms of the time they took and the actors involved.

The protection or reevaluation of common rights, communal property and customs were therefore constant and recurrent themes in the late medieval Campine area, just like it was for a wide range of European peasant communities. Between the fourteenth and sixteenth centuries in the Duchy of Brabant several venues or juridical institutions were at the disposal of communities. The range of formal courts was increasing significantly during this period, as new sovereign institutions and judicial officials were introduced with the arrival of the Burgundian Dukes.¹⁷

The most accessible and logical first step involved the local community members, neighbours, the parish priest or nobility, to solve conflicts informally. The immediate next step would be the local councils called the village aldermen’s bench. These benches acted as notaries, and judged voluntary law and criminal cases.¹⁸ From 1350 onwards, most Campine villages possessed their own aldermen’s bench.¹⁹ When the plaintiff or defendant wanted to file an appeal for a sentence given by the local aldermen’s bench in a civil case, they could go to the regional court of appeal.²⁰ Even though criminal cases could not be subject to an appeal, by the fifteenth century civil cases could be brought before all levels of justice right up to the sovereign court, which in the case of the Campine region was the Council of Brabant.²¹ The Burgundian rulers tried to expand their power by introducing ducal courts of appeal that overruled local courts.²²

Jurisdictions were complex. Local disputes concerning commons should have been within the jurisdiction of local aldermen’s benches.²³ But it is unclear whether they actually possessed the judicial power to judge complex cases about commons and communal rights. City courts of Antwerp or ‘s-Hertogenbosch have revealed similar shortcomings.²⁴ The fact that we do find traces of such conflicts being discussed in subaltern courts does suggest that at least in some instances peasants travelled to the towns and cities to settle their disputes in these courts. Urban or regional courts functioned predominantly as courts of appeal.

Peasants, however, frequently utilised the Council of Brabant, the sovereign and most expensive court of the Duchy of Brabant. Even though urban courts were successful in protecting their own jurisdiction, they were increasingly challenged as a court of appeal in other domains.²⁵ Even though hierarchies between the different courts were formulated in the sixteenth century, there were always options to avoid the rules. Local courts, of course, functioned as judicial institutions for local crimes, offences and civil cases, but jurisdictions often overlapped, and peasants could shop around to choose a court that would most likely favour their claim. Which appellate should be selected was something defined by jurisdictions but was also highly dependent on the issue at stake and the interests of the parties involved. As stated by Monballyu, sovereign courts often handled cases that could also be included in the jurisdiction of subaltern courts.²⁶ Since the Brabantine inhabitants were often looking for options to avoid the biased local and urban courts, they eagerly sought out legal advice of the regional councils.²⁷

Several types of conflicts could be directly handled by the sovereign court of Brabant. Villages, cities and ecclesiastical institutions had the privilege of entering the sovereign court even without filing an appeal.²⁸ In addition, sovereign courts were able to ‘reserve’ issues that would normally be judged by other courts. The Council of Flanders and Brabant had acquired the right to judge over possession claims.²⁹ As such, villages that wanted to protect their communal rights or commons could file a complaint directly before the highest court, the Council of Brabant, as long as they acted as the village community as a whole, or they could file a case of appeal before the court if they considered the local sentence unjust. Finally, even individuals who felt threatened in relation to their property rights could count on the Council of Brabant. Consequently, these sentence registers are invaluable sources for reconstructing Campine conflicts concerning the commons.

Sources. A challenge

In general, the amount of medieval juridical sources that have survived is limited. In comparison with England, where extensive manorial court records dating back to the thirteenth century are available, local juridical sources from the Low Countries are much more scarce and are only extant from the sixteenth century onward. Even though aldermen’s benches did act as village courts, resembling the English manorial court system, their written records mainly deal with their ‘jurisdiction gracieuze’: their activities as official ‘notaries’ including business such as registering deeds, inventories, obligations and credit transactions.³⁰ The existence of records of cases from Campine communities seeking guidance or filing an appeal are too scarce to yield a substantial analysis.³¹

Therefore, only the charter collections of the Dukes of Brabant and the abbey of Tongerlo and sentence registers of the archives of the clerks, an institution of the Council of Brabant that was founded around 1430, will be explored here.³² For the earlier period, charters are the only sources available that allow us to get a glimpse of conflicts and tensions. These include the ducal charters published by Verkooren and the clerical charters of the abbey of Tongerlo, which will be analysed here.³³

These, however, represent incomplete histories of conflict, and can probably only be viewed as the tip of the iceberg, as they only registered sentences, which included only the end stage of a conflict (the most costly part of all the stages being paid for, and most plaintiffs or defendants only filed a complaint as a sort of threat, without seeing it through to the end).³⁴

The timeframe selected for this research was 1498–1550.³⁵ All the cases in the selected sample years were analysed so as to pinpoint all cases concerning Campine villages, their common land, communal rights, agricultural strategies and jurisdictions.³⁶ The majority of cases were civil ones, dealing with inheritance conflicts, debts, obligations or rents.³⁷ In total, 412 sentences and charters were examined covering a wide range of conflicts originating in and around the Campine area.³⁸ Of these 412 cases, 204 were analysed more thoroughly, since the other cases contained only a summary sentence without further information.³⁹

Symbolic action and mediation: informal conflict resolution mechanisms

In the late medieval Low Countries, informal conflict resolution, within the village, would solve the large majority of the conflicts.⁴⁰ Formal courts had some significant disadvantages. Seigniorial courts were not independent from seigniorial influence and interests, and were feared because of their ability to impose fees and fines. In addition, the financial situation of the Dukes of Brabant, and later the Burgundian rulers, pushed the local judicial officials to cut costs and increase earnings, which had detrimental effects on the legal security of subjects as well as the objectivity of local courts and bailiffs.⁴¹ For this reason, a great deal of conflicts were resolved outside of the regular judicial system. Benoît Garnot has labelled these alternative systems infrajustice, parajustice and extrajustice.⁴²

Infrajustice was based on social consensus on at least the local level. The rules were determined within the community and had to comply with moral and social obligations shared by the majority. In order to work, the conflict had to be treated and solved in public as social pressure was vital for infrajustice.⁴³ Crucial in this form of conflict resolution were mediators as well as a kind of ritualised process of hearing both sides, negotiating and making amends and promises publicly. The next alternative form of justice was parajustice. While justice and infrajustice both operated in the public sphere, this was a more private manner of solving problems. The best example of parajustice was the practice of revenge and feuds.⁴⁴ Next to violent revenge between individuals, taking back land, destroying fences, replacing boundary markers or similar actions could also constitute types of revenge. Finally, there is the concept of extrajustice. Whereas all other types of justice attempted to solve a particular problem and restore the social equilibrium, extrajustice was the exact opposite and had no intention of solving any problem. Instead, one could react by committing a criminal act or by ignoring an infraction, indeed the latter happened frequently.⁴⁵ These semiformal and informal alternatives to justice were increasingly seen as the most efficient way of resolving conflicts.⁴⁶ Nevertheless, internal cohesion and a shared concept of justice was required for it to work. When such cohesion was missing, formal courts were required as well.

Informal actions left few records. Mostly, we have to rely on indirect evidence in regulations and charters, such as the village byelaws or references in formal court documents mentioning former stages in the resolution process. When we take a closer look at the byelaws, it becomes clear that we have to look more closely at conflict prevention. Campine communities invested enormous amounts of time, effort and money in maintaining the peace in the first place.⁴⁷ The village governments appointed village officials who were in charge of controlling, patrolling and solving problems within the village. In the village of Arendonk, for example, a village official called ‘aardmeester’ was given the task of delimiting all the pits for digging peat in order to prevent illegal digging.⁴⁸ At least three such officials were appointed per village and were obliged to control and prevent conflicts. They were helped by community members who were themselves obliged or encouraged by the byelaws and officials to keep an eye on their neighbours and report incidents.⁴⁹

Apart from maintaining the peace, these officials also functioned as indispensable mediators, solving conflicts before they could deteriorate and lead to a formal court case.⁵⁰ Because of their official status, these mediators gave a certain level of legitimacy to this form of conflict resolution.⁵¹ Since the other community members were present as witnesses or even plaintiffs, the collective and public nature of their arbitration made sure that the conflict could be solved via ritualised actions and that the final conclusion or alternative penalty could be witnessed by the community and both parties involved.

A striking example is a boundary conflict between the abbey of Tongerlo and a neighbouring Lord of Bergen op Zoom over the right of pasture on the commons belonging to the seigniory Kalmthout-Essen in 1440. Both local villagers and the ruling elite of Putte claimed that they possessed the right to graze their animals on the piece of heathland in question. Kalmthout and the abbey of Tongerlo, on the other hand, claimed that two fens, Schommersputte and Bollaartsmeer, were the official boundary markers. Since the Lord of Bergen op Zoom doubted these boundary markers, witnesses and officers of the seigniory and neighbouring villages were ordered to be present at the visitation of the common boundaries and had to declare which natural or man-made elements were the rightful boundary markers.⁵² Only when these forms of infrajustice failed, as was the case for Bergen op Zoom and Putte, was the matter taken to court. Even then the court often decided mediators had to be appointed to perform a field inspection, hear witnesses and follow a boundary visitation. They were often lords, members of the clergy or officials from within the area, but not necessarily the village itself. Especially the earliest charters of both the Duke of Brabant as well as the abbey of Tongerlo show the necessity of mediators.⁵³ Practically all conflicts between seigniorial lords were solved with the help of arbitrators, appointed by the seigniorial lords themselves, the ducal administration or the court.⁵⁴

Finally, forms of parajustice are to be found as well. Rural communities had their particular ways of squaring their accounts with trespassers or opposing interest groups regarding property and privileges. During the sixteenth century, hay meadows that were already owned privately increasingly became enclosed in order to safeguard multiple harvests of hay by the private owner. Divergent opinions concerning enclosure often led to conflicts.⁵⁵ There were various ways of resolving the issue. One option was the destruction of fences, ditches or hedges constructed in order to enclose the fields.⁵⁶ In the five reconstructed court cases, the owner of a plot of land, meadow or pasture complained in court that they owned, leased or rented this landed estates and therefore possessed the privilege of enjoying the fruits of their land, without interference. Their opponents, however, claimed their ‘possessie’ or right to collectively graze the meadows or pastures after harvest.

The same goes for common roads passing through fields or pastures. Neighbours often possessed the right to cross the adjacent plot of land in order to reach their property or the village road network. To safeguard one’s crops, peasants sometimes tried to prohibit crossing by placing fences or hedges around the fields. Both individuals as well as groups of community members often opted to reestablish the equilibrium by performing the ritualised act of destroying fences. For example, the case Willem Hendrickxsoon van Brussel, inhabitant of Mierlo, brought before court in April 1554. According to him, his family had purchased a hay meadow called ‘Molenbeemd’ located in Helmond more than seventy years ago, so long ago that nobody could remember it being any other way. Since he was the full owner, he had enclosed the plot with ditches and hedges. Nonetheless, a group of people including Willem Diericxsmets, Jasper Vrancken, Jan Frans Peeterssoen, Ambrosius Jan Dreycker and their accomplices had violently destroyed the ditches and removed the hedges planted there with force, finally driving their cattle and sheep into the meadow.⁵⁷

As these cases were traced via the sentence registers of the Council of Brabant, the strategy of restoring the status quo via direct action or revenge did not always work. Nevertheless, ritualised fence-breaking and cattle-droving have been described in several communities in premodern Europe, and to such an extent that it can be considered a dominant practice and was seen as a justified manner of showing discontent.⁵⁸ Even though the Habsburg monarchs were increasingly sensitive toward acts of violence or insubordination by peasants during the sixteenth century, the sentences of the Council of Brabant seem to support both Müller’s and Dyer’s theses.⁵⁹ Even though violent action was used and private property destroyed, the court twice decided in the favour of the violators.⁶⁰ On the remaining three occasions, the court stated that the enclosing of land was correct and therefore no infractions were allowed.⁶¹ They did not, however, object to the behaviour of the opponents, but rather discarded their argument that the enclosure or road block was illegal. The practice must therefore have been far more common than the five disputes found in the registers would suggest. Probably a warning such as breaking a fence or destroying of hedge would result in a new phase in the conflict resolution whereby the dispute could be discussed or mediated.

According to Dinges, up to two-thirds of all plaintiffs preferred an informal to a formal setting when discussing a conflict.⁶² This looks probable for the Campine area as well. The lack of registered small-scale conflicts concerning the everyday management and use of the commons seems to be suggestive of this. Apart from some records relating to the stealing and felling of trees (something that was vigorously controlled),⁶³ as well as criminal cases, the aldermen’s court records remain silent concerning conflicts and resolutions.⁶⁴ It is most likely that local officials and community members did not want to settle their disputes ‘on the record’. However, as informal conflict resolution relied on social consensus, shared norms and rules, and the willingness of both parties to accept these forms of ritualised conduct, a significant number of conflicts could nevertheless not be settled in this manner. Whenever different communities, parties with very imbalanced distributions of power or political elites (especially the ruling elites themselves) were involved, the possibility of working with local mediators and ritualised actions became scarce.

Formal courts: the place to discuss commons and communal rights

In addition to informal conflict resolution peasants did actively use formal courts, and not necessarily as a last resort, or because of desperation. For certain types of conflicts they preferred formal courts and especially the sovereign Council of Brabant. Thanks to the sentence registers of the Council of Brabant, some evidence can be found relating to the workings of lower courts. Sixteen cases between 1499 and 1547 refer to previous steps in the judicial strategy before they entered the highest court of the Low Countries.⁶⁵

This was the case for the villagers of Oplinter against the aldermen and ‘good men’ of Oplinter in 1513. One individual, Henrick Maes, who had always contributed to the village taxes, wanted to remain a member of the community but was considered an outsider by the village government as he was no longer a resident of Oplinter because he had moved to Tienen. Firstly, the issue was raised before the aldermen’s bench of Oplinter (containing the defendants themselves). Unsurprisingly, they favoured the defendants, causing Henrick Maes to turn toward the aldermen of Leuven to issue a ‘hoofdvaart’.⁶⁶ Campine peasants could and did turn to the local aldermen’s benches and even urban courts to settle their disputes. However, complex issues such as inclusion and exclusion are not encountered on this level. Apart from issues that corresponded with the main tasks of these benches, namely to regulate and settle issues regarding property, possessions, jurisdictions and offences, Campine peasants showed a remarkable preference for the Council of Brabant. After all, plaintiffs could skip the regional level and go straight for the sovereign court, as will be demonstrated in the next paragraph.

The popularity of the sovereign court is remarkable. Despite the bias, created by the source material, remarkably simple and local affairs were discussed in the sovereign court. Inspired by Richard Kagan, the litigious tendencies of the middling sections of society has received a great deal of attention.⁶⁷ In local tribunals peasants had little chance in defending their interests against their seigniorial lords or other powerful elites. In contrast, the royal courts had a reputation for independence and even showed a readiness to curb the powers of their political opponents, which in turn empowered and stimulated the peasants to plead before these royal courts.⁶⁸ Judicial pluralism gave inhabitants the opportunity to weigh the pros and cons of each court and to choose the one they considered the best option. Their choice could be based on a number of factors including legal costs, the judicial culture, geographical distance or political ideology.⁶⁹ Le Bailly presented the same kind of legal revolution for the southern Low Countries. From the late-fifteenth century onward, with a peak during the sixteenth century, a dramatic proliferation of litigation in the new sovereign courts appeared.⁷⁰ According to Maarten Van Dijck, the Council of Brabant attracted a huge amount of civil cases from the very start in 1431, increasing six-fold even within the first decade of its existence.⁷¹

Concordance concerning the legal revolution does not exist, however. Maarten Van Dijck states that alternative forms of justice were not only dominant, but always preferred to sovereign courts. Van Dijck stresses that sovereign courts were the least popular and were only used as a final option to resolve issues. To him, the introduction of these sovereign courts was mainly a top-down initiative, one not welcomed by the large majority of the population except for the wealthy merchants or nobility who could settle high-end debates about inheritance and transactions through them.⁷² Rising states tried to impose hierarchal justice systems and limit the jurisdictions of lower and, especially, urban courts. Even though civil courts were the pet projects of the Burgundian and Habsburg monarchs, they introduced high entrance fees and judicial costs soared as the procedure developed.⁷³

Robert Stein, however, has stated precisely the opposite. According to him, the arrival of central, sovereign courts played into the hands of several interest groups within the Low Countries. According to Stein, the top-down introduction was accompanied by a bottom-up appreciation of these courts for settling disputes. They provided the ability to shop around for courts, something that would benefit the interests of those groups that were not served in the local, urban or seigniorial courts.⁷⁴ Similar conclusions have been formulated by Richard Kagan and Hervé Piant. Kagan describes Early Modern Spanish society as a litigious one with a firm legal reflex.⁷⁵ Despite the moral objections against juridical strife, a wide range of conflicts was settled before the formal courts.⁷⁶ In addition, he considered the trend toward the frequent involvement of royal courts as a legal revolution, whereby these courts could be used by the middle classes and rural communities as they constituted an alternative for the biased seigniorial and urban courts.⁷⁷

It appears to be that for the Campine peasants and communities the Council of Brabant was a welcome institution. Surprisingly ‘ordinary’ cases that could easily have been dealt with by local aldermen’s benches and regional courts were in fact settled before the Council of Brabant between 1498 and 1580.⁷⁸ For the majority of the cases, it is difficult to assess whether they were cases of appeal or cases that were brought before the Council in the first instance.⁷⁹ In at least eighteen cases, a direct link to a former process before a subaltern court can be detected.⁸⁰ It is most probable, however, that the majority of the cases were a type of appeal, even though it was not explicitly mentioned in the sentence.⁸¹ Of all cases selected 32% refer to incidents whereby the litigants decided that their preferred court for settling disputes was the Council of Brabant.⁸² This does not rule out the conflict already having been handled via informal conflict resolution mechanisms.

Despite the quite ‘ordinary’ and arbitrary appearance of these conflicts, they practically all relate back to the issue of the survival of the commons. The day-to-day management of the commons was never the subject of these disputes.⁸³ Disputes concerning roads all dealt with the issue of whether or not an individual or group was hindered in terms of communal rights of passage or occasions when an individual complained about the existence of such rights. Violations of property were not mere criminal offences equal to the stealing of hay or grain harvests, rather they were conflicts arising from the private and enclosed character of land. Piecemeal enclosures were apparently accepted, yet those actions that hindered or limited the other community members in the communal practices were contested and often led to the violation of the alleged private property. Finally, communal rights in all their aspects were dominant. It was here that the concept and survival of the commons as institutions and regimes were discussed.

Table 8.1 Evolution of the number of cases brought before the Council of Brabant by Campine inhabitants that were sentenced between the foundation of the council in 1430 and 156084
Period	Number of cases
1200–20	2
1220–40	0
1240–60	0
1260–80	0
1280–300	1
1300–20	0
1320–40	3
1340–60	9
1360–80	1
1380–400	3
1400–20	1
1420–40	4
1440–60	6
1460–80	3
1480–500	11
1500–20	22
1520–40	45
1540–60	37

Campine inhabitants therefore did actively use the Council as part of their strategy to defend their interests regarding common property regimes and institutions. In addition, they did this quite quickly after the foundation of the Council as Table 8.1 shows and a true lift-off in terms of the number of cases brought to it was experienced after 1460.⁸⁵

Why did these Campine peasants want to resolve their conflicts before the Council of Brabant? Firstly, Campine peasants could and did opt for the sovereign court because of its accessibility. While Van Dijck has claimed that the costs relating to taking a grievance to court were too great for the lower middling groups of society and poor households, forcing them to rely on violence and alternative forms of justice,⁸⁶ it appears, on the contrary, that the Campine peasants developed strategies in order to participate in court. However, Maarten Van Dijck was correct by stating that a court case was expensive. Even though the starting cost of entering a case at a sovereign court might not have been too high, as Dinges stated, the cases presented here all reached the final stage of a sentence and therefore came to a substantial sum.⁸⁷ According to Maarten Van Dijck, a court case that managed to reach the stage of passing a sentence could amount to a third of the annual wage of a skilled labourer.⁸⁸ Stein’s research revealed that a case before the Council of Holland could, on average, cost 8 pounds, which was probably a sum that only skilled labourers or wealthier groups could afford.⁸⁹

Despite the significant cost of a case before the Council of Brabant, most interest groups of the Campine peasant communities found their way to the highest court. While elites were obviously the most litigious group in absolute and relative numbers, surprisingly modest Campine peasants, owning no more than five or maximum ten hectares of land, are found entering the Council of Brabant. Showing the exact background of the Campine litigants is rather difficult, because of a lack of social or economic sources, such as tax or rent registers or estate books, which could be linked with the juridical cases.⁹⁰ This does not, however, mean that we cannot paint a general picture of their social background. Based upon the scarce information given in the sentence, together with the socioeconomic knowledge obtained about the Campine area, a general estimation can be created.

Well-heeled litigants such as lords, abbots and other members of the social elite are overrepresented in the depositions of the Council of Brabant, but they were by no means the most dominant group. Next to these well-off plaintiffs and defendants even independent peasants, owning or leasing on average two to five hectares, as well as cottagers and small-scale peasants were found. For example, Elizabeth, the widow of Pieters van Ostaden, filed a complaint against Jan Verwijnen for the destruction and violation of her property. Her husband had purchased the estate over twenty years before and was in possession of the legal proof of that sale. They had been in peaceful possession of it ever since and had used the farmstead and land in Rijsbergen. They had ploughed, sown and enclosed the land as they wished and nobody, according to their plea, had the right to object. Nevertheless, Jan Verwijnen had driven his livestock onto the land and pastures, felled trees and dug peat, all against the wishes of Elizabeth.⁹¹ After pleading before the Council of Brabant, an official was sent to Rijsbergen to declare that widow Elizabeth was in full possession of the estate and to order Jan Verwijnen to abstain from violating or using the property again. Jan Verwijnen, however, claimed to be entitled to the farmstead and land himself, and demanded that the case of Elizabeth be declared void and unacceptable. In the end, Elizabeth and her solicitor did not return to court and Jan Verwijnen did win the case.⁹²

The plaintiffs had to be of a certain social standing in order to bear the costs that followed from such a court case. In the case of the widow Elizabeth, not only did she lose her claim on the land, she had to suffer the consequence of going to court and receiving a sentence by paying all legal fees.⁹³ This strategy of moving to the sovereign court by semiwell-off peasants was not a hopeless cause as most independent peasants’ access rights were in fact affirmed and secured, apart from Elizabeth’s. This group of litigants, therefore, is exactly what Kagan would have called the most important group of actors in court.⁹⁴ They possessed or leased land sufficiently large to risk a third of an annual labourers wage – as Maarten Van Dijck has stated⁹⁵ – but desperate enough to defend their interests and property in order to maintain their independent status. As such, they had to fight for their position and find their way to court to settle these differences. Due to the privilege of being able to bring a maintenance case before the Council of Brabant, such cases were relatively abundant.

However, the weakest and poorest peasants gained access as well. The greatest weapon of the weak, or the ‘action resources’ as Ratner has called them, was their ability to adapt themselves to the system.⁹⁶ Instead of individually defending one’s interests, peasants formed collectives. Social networks were, according to Ratner, the most important attributes one could have at one’s disposal during a conflict.⁹⁷ The first and most obvious interest community that could be formed was that of the village community. After all, as a village community, they received the right to skip the subaltern courts and immediately plead before the sovereign court.⁹⁸

Calling themselves the ‘ingezetenen ende gemeyne geburen’ or ‘inhabitants and common neighbours’, they painted a picture of a harmonious, uniform and undivided interest community. This did not necessarily mean every inhabitant was involved or even agreed on the cause, but a substantial part or core of the community put themselves forward as representatives of the community, therefore laying claim to a communal identity.⁹⁹ Appearing before court as a village community, and not simply a group of individuals, was considered important and was believed to strengthen the legitimacy of their case as well as give them access to the ducal court. One group of villagers even tried to claim the status, even though they were only a minority. They were caught and lost the case, but it showed the importance of being part of a village community in court.¹⁰⁰ When it came to defending common rights, belonging to and presenting oneself as the village community immediately enlarged the interest community’s bargaining power. Thirty percent of the plaintiffs and 33% of the defendants presented themselves as such communities. Even though, at certain times, different interest groups within the village community would battle each other, they would form a coalition and present themselves to the outside world as a harmonious entity if external threats appeared.

Sometimes, however, such clear village demarcations were challenging for the litigants. If that was the case, peasants could plead before court as a group of individuals. For example, in 1512 Jan Liebens, Janne Hillen and their accomplices all possessed a hay meadow in the ‘broek’ of Koersel and filed a complaint against the inhabitants of Koersel. They claimed that every one of them and their ancestors had been in the peaceful possession of those meadows for over two, possibly sixty or even one hundred years, or for as long as anyone could remember. The inhabitants of Koersel, however, claimed that the meadows had to be open to village cattle from the harvest month until mid-May. As such, they forced their cattle onto the meadows on a daily basis, thereby doing injustice to the plaintiffs. To add legitimacy to the claim, they all gave a particularly detailed list of their landed property by stating the surface area and position of their hay meadows.¹⁰¹ These individuals, therefore, cleverly constructed a discourse that emphasised their status as land owners, one that had clear property rights that should not be disturbed in any way.

At times, however, this deliberate construction of an interest community cannot be witnessed particularly when groups of individuals were the defendants. They were often referred to as individual x, y or z and their accomplices. In lawsuits concerning the destruction of fences and the deliberate violation of private property, such summary references to individuals prevailed. These cases, however, do demonstrate that peasants waging a lawsuit right up until the moment a sentence was passed often did not react nor pleaded as individuals. As was the case with infra- and parajustice, the legitimacy of one’s claim was often augmented when performed in plain sight and in a group.¹⁰² If one person destroyed a fence, it might be perceived as a simple criminal fact, but if a collective of inhabitants appeared in public and destroyed a fence, it was deemed a symbolic action against that enclosure. The same went for courts. If one person objected against an enclosure, it could be considered as a single disgruntled opponent, but if a group of owners, inhabitants or commoners filed a complaint, or defended their case against the plaintiff, their bargaining power was significantly enlarged. In addition, the risk of weathering court fees and fines was shared by a larger group and therefore made more bearable.

Secondly, Campine peasants opted to go beyond village aldermen’s benches because of the profile of the court. When discussing the issue of access to the commons between two communities, often involving the aldermen themselves, both parties were aware that a neutral statement was impossible in the village court. For example, four references in the sentence registers can be found stating that they brought the issue before the highest court precisely because the judges of the local court were also involved and therefore the conflict could not be settled either locally or before the village aldermen’s bench.¹⁰³ In 1531 the aldermen and inhabitants of Vechel brought their case against Henrick Beyens and the aldermen of the city of ‘s-Hertogenbosch, before the Council of Brabant. They already had received a negative sentence in the city’s aldermen’s bench, but they claimed they were greatly disadvantaged, because the aldermen were an involved party and therefore not competent to judge this case, while the Council of Brabant was.¹⁰⁴ In addition, urban courts had their own logic and interests that did not really favour Campine village communities. The city of ‘s-Hertogenbosch, for example, often initiated attempts to force the rural surroundings into a dependent relationship or their citizens were often involved in enclosure cases against neighbouring hamlets.¹⁰⁵ As a result, the court of ‘s-Hertogenbosch would, for a large part of the Campine society, be considered biased.

The Council of Brabant, beacon of ducal power and justice, appeared popular among Campine communities. This image of the Burgundian rulers as the alternative to corrupt bailiffs and aldermen is seen clearly in a tale that became quite popular in the fifteenth century. In this tale a bailiff had stolen a cow from a poor household that had refused to sell it to him. To complain about this matter, the poor farmer went to Count Willem III and pleaded for justice. The Count ordered that the farmer be compensated, but he stated that the bailiff’s punishment for failing toward the Count would be much more grave. The bailiff was, in the end, sent to the executioner. A powerful image of the avenging ruler was therefore created.¹⁰⁶

Even though Stein has claimed this image was dependent on the aura of objectivity that accompanied the sovereigns, I would argue that this was not necessarily the case. In my assessment, it was precisely the image of the Duke of Brabant not as a transcendent, just and neutral ruler, but as an involved party, with his particular interests, such as curbing the powers of the subaltern courts, that was the main reason Campine peasants and communities took their case to the highest, most expensive and furthest court. Even though the Dukes of Brabant were labile partners, and their interests could shift from opposing ecclesiastical institutions and feudal lords, toward embracing the nobility as their partners,¹⁰⁷ they were still the most obvious political actors the Campine peasants were able to turn to.

Their strategies, in the end, seemed to have been worthwhile. The Burgundian administration did not always favour peasant communities or particular claims, such as the maintenance of common rights, but neither did they do the opposite. Fence disputes, for example, show that the Duke was not necessarily opposed to the violent destruction of fences as a reaction against alleged unlawful enclosures. Furthermore, claims that meadows had to be open after harvest did often receive a positive sentence. Those undertaking enclosure, however, did not necessarily need to fear the ducal court would constantly favour protesting communities, individuals or groups and the same tendency could be found with regards to other types of conflicts. It is difficult to count the amount of ‘successful cases’ protecting communal property or rights, since not all conflicts were black and white, but in general, the ducal administration often had a positive attitude toward common property, customs and common use rights.¹⁰⁸ The real outcome, however, depended largely on the case itself and very specific circumstances as no correlation between certain arguments and sentences can be found. In the end, however, the Campine peasants were one of the few regions in the Low Countries and north-western Europe in general that managed to maintain their communal rights, prevent the commons from shrinking to a negligible size, obtain inclusive access rights and fend off external and internal threats to the common property regime and the common pool institutions.

Campine peasants therefore had a wide range of judicial venues that they could access to plead their case and were bound to be heard. Their negotiations on the informal or formal, local or regional level were often fruitful, and were one of the reasons that their communal privileges and communal property survived the later Middle Ages. It is, however, important to note that this was not an evident or given outcome. Not all peasants possessed the same agency and influence in the late medieval courts. Because until this day regional divergences, even within the same counties and judicial boundaries, in access to and influence in courts, is often neglected. Even though every conflict can be interpreted as a negotiation, some regions were able to have constructive discussions, while others fought battles that were sure to be lost. The bargaining power of peasant communities in premodern Europe could diverge fundamentally, even between neighbouring regions.¹⁰⁹ While some communities were able to obtain or maintain communal rights or privileges, others encountered increasingly dominant political elites, which could change their situation entirely. It is therefore of vital importance to dedicate more attention to these regional differences in terms of how conflicts originated and in which way they were handled. Regional comparisons of power imbalances leading to different levels of access to courts and influence in conflict resolution should be a main priority.

Conclusion

Discussions, or to put it more pejoratively, conflicts concerning land and communal rights were a constant factor in many late medieval peasant’s lives. Even without any fundamental disruptive actions – such as parliamentary enclosures – divergent opinions concerning communal rights, management of commons and common property regimes often led to heightened tensions. A lot of these tensions were settled outside of the formal court system, within the village communities. Thanks to conflict prevention, mediators and forms of symbolic action, peasants were perfectly able to communicate most grievances and solve the issues without the intervention of lawyers and judges. Forms of infrajustice or parajustice required a setting whereby the community had a shared concept of what was just and how a conflict could be resolved. In addition, both parties had to be accepted members of society in order to settle disputes. Peasants therefore actively and purposely included formal courts in their strategies to plead their case concerning property and communal rights. Moreover a rural, legal revolution took place in the late medieval Campine area. The range of judicial venues, which was already extensive before 1430, was broadened by the arrival of the Burgundian Dukes and their regional, sovereign courts. Just like Kagan, le Bailly and Stein had stated, these courts were no top-down introductions, but were welcomed from the bottom up.

The most interesting finding was that late medieval peasants not only welcomed these regional courts, but that these courts were extraordinarily favoured to tackle issues concerning the survival of the commons, as opposed to urban and local courts. The Campine peasants chose their judicial venues very carefully according to the specific conflict and shopped around for the venue were their odds were the highest. The Duke of Brabant appeared to be their most important partner in crime, rather than an objective judge, to plead for the protection of communal rights and the confirmation of charters.

As stated before by Kagan, middling types of people like peasants did enter court. But they were not all able to walk in to the sovereign Council of Brabant and pay for the legal process. Not everybody had individual access to the Council of Brabant or could reach the final stage of a sentence. While the rural elites and wealthier independent peasants were able to afford a court case on an individual basis, most peasants developed the strategy of forming collectives and appear in cohorts as a group or community. This enhanced their visibility, power and legitimacy. In addition, it gave them access to enter court immediately, thereby skipping unwanted levels of justice. Campine peasants were therefore able to negotiate all aspects of their commons on all levels and through different forms of justice, which secured the endurance of the common denominator.

Appendix

Database of 204 records

Erens, A., De Oorkonden Der Abdij Tongerloo. 4 vols (Tongerlo, 1948).

· N° 67, 1213 Arnold Van Wezemaal vs Abbey of Tongerlo

· N° 70, 1215 Winric Van Alphen (Knight) vs Abbey of Tongerlo

· N° 93, 1226 Abbey of Tongerlo vs Michiel van Ranst

· N° 239, 1284 Abbey of Tongerlo vs Walter Haweli and his brothers

· N° 272, 1292 Duke of Brabant vs Abbey of Tongerlo

· N° 337, 18th of August 1301 Knight Daniel vs Abbey of Tongerlo

· N° 348, 19th of July 1303 Duke of Brabant vs Abbey of Tongerlo

· N° 391, 8th of March 1308 Steward of Brabant vs Abbey of Tongerlo

· N° 404, 26th of August 1308 Steven van Waalwijk vs Mathias van Hapert and Abbey of Tongerlo

· N° 418, 13th of December 1309 Jan de Sned, Jan Thomaszoon vs Hendric Bac

· N° 421, 1st of June 1310 Jan and Hendrik de Hase of Oevel vs Arnold Trenchelare of Morkhove

· N° 441, 12th of December 1311 Duke of Brabant vs Hopsital of Turnhout

· N° 515, 31st of October 1316 Walter van Hamme vs Abbey of Tongerlo

· N° 628, 9th of January 1324 Steward of Brabant vs Abbey of Tongerlo

· N° 743, 21st of September 1331 Lord of Duffel and Geel vs Wouter van Uutschule

· N° 744, 21st of October 1331 Abbey of Tongerlo vs Chapter of Kamerijk

· N° 755, 9th of March 1332 Steward of Breda vs Jacop Zuetrix

· N° 775, 30th of May 1334 Duke of Brabant vs Village of Middelbeers

· N° 795, 18th of October 1335 Steward of Brabant vs Abbey of Tongerlo

· N° 800, 2th of March 1336 Duke of Brabant vs Abbey of Tongerlo

· N° 921, 27th of July 1348 Hendrick Boykens vs Abbey of Tongerlo

· N° 979, 30th of July 1352 Abbey of Tongerlo vs Hermits of Huibergen

· N° 1009, 4th of July 1354 Abbey of Tongerlo vs Lord of Wezemaal

· N° 1077, 31st of July 1358 Lord of Bergen op Zoom vs Abbey of Tongerlo

· N° 1078, 1st of September 1358 Lord of Bergen op Zoom vs Abbey of Tongerlo

· N° 1079, 1st of September 1358 Ibid

· N° 1103, 14th of April 1360 Hermits of Huibergen vs Abbey of Tongerlo

· N° 1116, 14th of June 1361 Abbey of Tongerlo vs Lord of Duffel and Geel

· Abbey Archives of Tongerlo (AAT), Charters

· N° 668, 1352 Abbey of Tongerlo vs Cloister of Huibergen

· N° 720, 1358 Lord of Bergen op Zoom vs Abbey of Tongerlo

· N° 18, fourteenth century, Duke of Brabant vs property owners of Kalmthout

· N° 19, fourteenth century, Abbey of Tongerlo vs Lord of Wezemaal

· N° unknown, 27th of June 1395 Lord of Duffel and Geel vs Abbey of Tongerlo

· N° 29, 23th of January 1420 Duke of Brabant vs Village of Ravels and Poppel

· N° 31, 17th of June 1420 Duke of Brabant vs Village of Ravels and Turnhout

· N° 37, 11th of November 1427 Lord of Wezemaal vs City of Geel and Oosterlo

· N° 39, 15th of April 1429 Lord of Noorderwijk vs Tanners of Herentals

· N° 41, 42, 3th of May 1429 Jan Godensz vs Bailiff and village of Kalmthout-Essen

· N° 43, 24th of April 1431Village of Zammel vs Abbey of Tongerlo

· N° 44, 5th of May 1434 Jan vander Aa vs Lord of Hoogstraten

· N° 51, 15th of November 1441 Duke of Brabant vs Lord of Bergen op Zoom

· N° unknown, 6th of July 1459 Abbey of Tongerlo vs Village of Ravels

· N° 67, 29th of September 1463 Aart and Jan de Straeper vs Abbey of Tongerlo

· N° 68, 4th of October 1464 Abbey of Tongerlo vs Village of Brecht

· N° 70, 15th of December 1468 Abbey of Tongerlo vs Village of Oerle

Verkooren, A., Inventaire Des Chartes Et Cartulaires Des Duchés De Brabant Et De Limbourg Et Des Pays D’outre-Meuse. Premier Partie. Chartes Originales Et Vidimées. 1154–338, (1910)

Volume 1

· N° 81, 23th of June 1236 Duke of Brabant vs Suburbs of Lier

· N° 98, April 1247 Duke of Brabant Village of Herenthout

· N° 202, 4th of December 1300 Duke of Brabant vs Village of Oisterwijk

· N° 208, 24th of June 1303 Duke of Brabant vs City of Herentals

· N° 227, 5th of August 1310 Duke of Brabant vs Village of Vechel

· N° 231, 21st of August 1311 Duke of Brabant vs Hospital of Turnhout

· N° 235, 27th of September 1312 Duke of Brabant vs Inhabitants of Lotharingen, Brabant and Limburg

Volume 2

· N° 18, 9th of November 1321 City of Walhorn vs Suburbs of Walhorn

· N° 26, 7th of May 1326 Duke of Brabant vs Village of Liempde

· N° 34, 24th of September 1331 Duke of Brabant vs Village of Bergeik and Westerhoven

· N° 54, 9th of December 1337 Duke of Brabant vs Village of Liempde

· N° 56, 22nd of July 1338 Duke of Brabant vs City of Turnhout

· N° 66, 18th of June 1344 Duke of Brabant vs City of ‘s-Hertogenbosch

· N° 79, 22nd of May 1351 Duke of Brabant vs Inhabitants of Lotharingen, Brabant and Limburg

· N° 130, 4th of February 1358 Duke of Brabant vs City of Lier

· N° 203, 3th of June 1378 Steward of Brabant vs Village of Kasterlee

· N° 219, 24th of August 1383 Duke of Brabant vs Aldermen and jurors of Oisterwijk

Volume 3

· 19th of March 1436 Lord of Petersheim, Oirschot and Beke vs Thieric Dijcke of Maastricht

· 5th of July 1436 Duke of Brabant vs City of Tilburg and Goerle

· 5th of July 1436 Duke of Brabant vs City of Tilburg and Goerle

· 5th of September 1436 Bailiff of Hilvarenbeek vs Village of Hilvarenbeek

· 5th of September 1436 Duke of Brabant vs City of Tilburg and Goerle

· 1436 Duke of Brabant vs Village of Kerk-Oerle

· 10th of 1438 Duke of Brabant vs Master de Dynther

· 1439 Limburg vs City of Aken

· 15th of November 1441 Lord of Bergen op Zoom vs Abbey of Tongerlo

· 4th of March 1446 Villages of Brabant vs Villages of Loon

· 22nd of April 1446 Village of Vessel vs Jean Boydens Marie

· 25th of May 1446 Village of Vechel vs Village of Erpe

· 16th of June 1449 Duke of Brabant vs City of Oisterwijk

· 20th of September 1451 Duke of Brabant vs Inhabitants of Brabant

· 22nd of August 1458 Steward of Brabant vs Village of Wilmarsdonk and Oorderen

· 10th of May 1462 Duke of Brabant vs Villages of Brabant

· 2nd of July 1462 Duke of Brabant vs Aldermen and jurors of Herentals

· 26th of January 1463 Aldermen of Gref vs Steward of Brabant

· 21st April of 1464 Duke of Brabant vs Villages of Brabant

Sentence registers of the Council of Brabant: Rijksarchief Brussel (RAB), Conseil de Brabant, Archives of the registry, General sentence registers

· Book 564, N° 18, September 1494, Noorderwijk, Village of Noorderwijk vs Village of Biest

· Book 549, N° 11, August 1495, Netersel, Village of Netersel vs Aldermen and village of Beke

· Book 547, N° 35, 15th of November 1495, Mierde, City of Turnhout and Arendonk vs Village of Mierde

· Book 554, N° 58, 1498, Halen, Village of Halen vs Aldermen and Burgomasters of Halen

· Book 557, N° 45, September 1498, Grootbeemd, Village of Oirschot vs Aldermen, jurors and village of Grootbeemd

· Book 553, N° 63, November 1498, Vechel, Village of Vechel vs Village of Schijndel

· Book 553, N° 47, June 1499, Lieshout, Village of Beke and Aerle vs Aldermen and village of Lieshout

· Book 551, N° 57, July 1499, Geetbets, Reynier De Smet vs Jan van Halle

· Book 553, N° 10, end of fifteenth century, Zommeren, Abbey of Postel vs Village of Zommeren

· Book 553, 13, December 1499, unknown, Holy Ghost table vs Henrick van Deurne

· Book 553, N° 66, end of fifteenth century, Oirschot, Vorster of Oirschot vs Bailiff of ‘s-Hertogenbosch

· Book 554, N° 51, end of fifteenth century, Leuven, Francken Loenkens vs Bailiff and Vorster Abbey of Leuven

· Book 553, N° 57, end of fifteenth century, Oirschot, Village of Grootbeemd vs Aldermen jurors and eight good men of Oirschot

· Book 562, N° 38, March of 1502, Richelle, Village of Richelle vs Our Lady’s church of Aken

· Book 555, N° 13, March 1502, Noorderwijk Peter vander Beke vs Claes Folbiers and Jan de Voldere

· Book 562, N° 66, October 1504, Herentals, Burghers of Herentals vs Village of Mol, Dessel and Balen

· Book 556, N° 85, September 1505, Putte, Jan De Bruyne vs Jan Wouters

· Book 563, N° 49, 1507, Bakel, Lord of Bakel vs Village of Bakel

· Book 557, N° 63, 1507, Mechelen, Janne vander Zenne vs Holy Ghost table of Saint Peter’s of Mechelen

· Book 564, N° 6, January 1508, Putte, Widow Jan van Voorspoel vs Jan Horeman

· Book 558, N° 40, 1508, Deurne, Village of Deurne vs Damiele Melis Mauwerssoon

· Book 559, N° 1, June 1509, Tilburg, Willems Wouwen inhabitant of Beke vs Bailiff and City of Tilburg

· Book 565, N° 9, 1509, Turnhout, Peter Stynen vs Peter Pynaerts

· Book 561, N° 67, July 1510, Vorst, Cloister of Vorst vs Bailiff Jan de Knibbere

· Book 560, N° 33, November 1510, Kontich (Nl), Jan Papenelt vs Lord JAnne vanden Aa (knight)

· Book 561, N° 16, 1510, Vroenhoven, Peeters vanden Berghen vs Village of Vroenhoven

· Book 562, N° 75, 1511, Asse, Steward of Lord of Asse vs Church masters of Asse

· Book 563, N° 76, 1512, Koersel, Jan Liebens and Jan Hillen vs Village of Koersel

· Book 564, N° 53, March 1513, Oplinter, Village of Oplinter vs Aldermen and good men of Oplinter

· Book 564, N° 35, June 1514, Werbeke, Village of Werbeke vs Peeteren Suys, Janne Arnts and fellow inhabitants of Retie

· Book 565, N° 81, December 1516, Eppegem, Village of Houtham vs Bailiff of Eppegem

· Book 576, N° 3, November 1522, Leende, Village of Leende vs Lord Maximiliaen van Horne

· Book 576, N° 229, July 1524, Gaasbeek, Arnt van Hoechtem and fellos inhabitants of Leende vs Attorney General of Brabant, Bailiff and Lord van Horne of Gaasbeek

· Book 586, N° 3, July 1525, Onze-Lieve-Vrouwe-Waver, Lucassen Cop vs Verberct

· Book 581, N° 48, April 1526, Stiphout, Church masters of Saint John’s ‘s-Hertogenbosch vs Village and property owners of Strijpe, Aerlebeke and Stiphout

· Book 583, N° 12, January 1527, Heverlee, Cloister vander Banck vs Verone Priors

· Book 580, N° 87, September 1527, Rixtel, Jan Wouterssoon van Dommelen vs Church masters of Rixtel

· Book 576, N° 175, August 1529, Oplinter, Ottens van Malborch vs Bertelmeens de Hertoge

· Book 577, N° 216, February 1530, Kortenaken, Guardian children Janne Vos vs Willem van Papenwerck

· Book 579, N° 104, August 1530, Wuustwezel, Lady Maximiliaen vander Noot vs Village of Wuustwezel

· Book 578, N° 38, May 1531, Putte, Cornelis Vervoert vs Jan Zeven

· Book 585, N° 1, October 1531, Meldert, Village of Meldert and Hechelgem vs Abbey of Affligem

· Book 578, N° 286, November 1531, Huldenberg, Lady of Houthem and Huldenberg vs Gielis vander Banwetten and fellows

· Book 581, N° 33, November 1531, Wechelderzande, Wouters Versant vs Aert Stevens

· Book 582, N° 117, March 1532, Wezembeek, Widow Pieter vanden Bossche vs Henrick Scheers

· Book 581, N° 123, May 1532, Itegem, Unknown vs Mertens Lauwaerts Jan van Rotselaer and fellows

· Book 581, N° 35, May 1532, Massenhove, Cloister of Saint Claes Bergen vs Gabriel van Dornicke

· Book 579, N° 139, June 1532, Hersele, Abbey of Saint Geertruyde vs unknown

· Book 586, N° 125, July 1532, Vechel, Henricke Beyens burgher of ‘s-Hertogenbosch vs Aldermen, jurors and land surveyor of Vechel

· Book 579, N° 132, December 1532, Helmond, Arnts Mominck vs Willem Thonis

· Book 582, N° 41, March 1533, Unknown, Widow Clements Poels vs Claes Scampioen

· Book 586, N° 94, July 1533, Schijndel, Janne Palm Burgher of ‘s-Hertogenbosch vs Village of Schijndel

· Book 580, N° 71, October 1533, Sterksel, Abbey of Averbode vs Village of Zoeveren

· Book 583, N° 105, March 1534, Kasterlee, Jan Broothaze vs Jan Van Kets

· Book 581, N° 11, March 1534, Meldert, Master Cornelis van Lathem and fellows vs Lord of Duras and Willem van Loeffelt

· Book 581, N° 19, June 1534, Retie, Janne van Bergelen vs Lijsbeth Busscherts

· Book 585, N° 198, June 1535, Stiphout, Village of Stiphout vs Curch masters Saint John’s of ‘s-Hertogenbosch

· Book 582, N° 253, June 1535, Rijsbergen, Widow Pieter van Ostaden vs Jan Wymeren

· Book 583, N° 274, September 1535, Kerkkasteel, Village of Kerkkasteel vs Diercken Zweerts, Vuytgaerde, Widow Lambrechts Leenen, Diericken Steemans with his wife and children, Willem van Ermen, Arnde Arnts Papensoene van Ghestele, Janne Beerts, Katerine widow of Hermans Hollanders

· Book 585, N° 21, October 1536, Assche, Roesbeke vs Nuffele

· Book 600, N° 19, November 1536, Helmond, Lord of Helmond vs Village, burgomasters, aldermen and deans of Helmond

· Book 591, N° 292, November 1536, Oirschot, Aldermen, jurors and city of Oirschot vs Village of Woensel

· Book 584, N° 225, February 1537, Oisterwijk, Wouter vanden Venne and JAnne de Spijkere vs Janne Andriessoene Matheeus, JAns Andriessoene, Joahanna Blocx, Wouteren van Heusden, Jacoppe Blocx

· Book 584, N° 164, April 1537, Oisterwijk, Aert van Uden vs Adriaen vanden Houte

· Book 586, N° 19, May 1537, Olmen, Jacop Lemmens vs Arnden Lummelen

· Book 586, N° 104, February 1538, Wijnegem, Church masters of Wijnegem vs Aldermen of Deurne

· Book 599, N° 14, September 1538, Beerse, Janne Gheerden vanden Eynde burghers of Antwerp vs Adriaen Berchmans, Janne Willemaerts, Michielen vanden Hove, Sebastiaen Thems

· Book 591, N° 7, November 1538, Herentals, Poor relief of Saint Peter’s in MEchelen, Janne van Liefvelt, Janne van Beringen and fellows vs Aldermen of Herentals

· Book 585, N° 169, November 1538, Rixtel, Village of Gemert vs Village of Beke, Aerle and Rixtel

· Book 587, N° 3, February 1539, Chammont, Jans van Buret vs Pylet

· Book 593, N° 218, November 1539, Ellich, Cloister of Cabbeke vs Jan Jacopssone and fellows

· Book 594, N° 134, May 1540, Isschot, Village of Grootheze vs Village of Isschot

· Book 589, N° 30, August 1540, Dongen, Lord of Venloon vs Prince of Orange, Steward of Oisterhout and Village of Dongen

· Book 594, N° 152, December 1540, Anderlecht, Claesen Nagels and fellows of Anderlecht vs Aldermen of Brussels, Michiel Bech, Gheerden op den Bosch

· Book 590, N° 87, Rixtel, Village of Aerle, Beke and Rixtel vs Village of Gemert

· Book 593, N° 214, May 1541, Mierlo, Joes Snoecx vs Priest Jan de Costere and fellows

· Book 593, N° 30, May 1541, Isschot, Henricx de Proest, Jans Huysmans and Gielis van Ysschot of Isschot vs Village of Grootheeze

· Book 594, N° 98, August 1541, Veerle, Widow Johanne vander Straten vs Marien vander Thommen and tenant Janne Colijns

· Book 590, N° 15, August 1541, Rixtel, Village of Aerle, Beke, Rixtel and Helmond vs Lord Wynande van Breyel Knight, Land commander van Baillien, vander Biesen of the German order of Our Lady of Jerusalem

· Book 588, N° 177, November 1541, Vilvoorde, Peter van Lyere vs Tomas Chenue

· Book 589, N° 48, December 1542, Unknown, Abbey of Saint Bernaerts vs Hubrecht de Ketelere, Adriaen Gestelere and fellows

· Book 597, N° 251, June 1543, Meldert, Beys vs Vande Velde

· Book 591, N° 46, June 1544, Dielegem, Warande master of Brabant and Abbey of Dielegem vs Steven vanden Steene

· Book 593, N° 219, December 1544, Unknown, Marcelis Claessens vs Henrick Hoze

· Book 602, N° 71, April 1545, Aken, Burgomaster, aldermen and council of Aken vs Bailiff aldermen and Village of Mothsem

· Book 594, N° 28, April 1545, Diest, Henricks Roggen vs Jan van Boeckel and Jan Baecken

· Book 595, N° 121, June 1545, Putte, Zoetmont vs Mathijs Verpoert

· Book 595, N° 103, July 1545, Unknown, Janne van Floeshem, Janne de Bijl, Janne Roelants and fellows vs Clare Mathijs

· Book 597, N° 26, August 1545, Aarschot, Aldermen, Chruch masters, Holy Ghost masters and Village of Landorp vs Abbey of Saint Geertruyde

· Book 596, N° 323, August 1545, Pedeland, Widow Claes Wouterssoen vs Adriaen Wouters

· Book 591, N° 113, 1545, Aken, Burgomaster, aldermen and council of Aken vs Burgomaster, bailiff, aldermen and village of Mothsem

· Book 595, N° 67, July 1546, Aarschot, Abbey of Sint Truiden vs Lord Schoenhoven

· Book 595, N° 63, October 1546, Valkenborg, Widow Matheeus Gruysen vs Jan Savelants and fellows

· Book 597, N° 27, December 1546, Schaarbeek, Village of Schaarbeek vs Jacop Broman and Steward of abbey of Heilem

· Book 595, N° 134, December 1546, Oirschot, Janne Aertsen, Henricke Hoppenbrouwers and fellows, aldermen, jurors and village of Oirschot vs Aldermen of ‘s-Hertogenbosch

· Book 598, N° 7, March 1547, Oisterwijk, Jurors and village of Haren and Belveren vs Bailiff burgomasters, aldermen, jurors and city of Oisterwijk

· Book 598, N° 331, March 1547, Kumtich, Cornelis Lambierts vs Jan Fricx, Jan vander Gheeten, Mathijs van Coolhem and fellows

· Book 595, N° 91, August 1547, Schoten, Deans of Our Lady of Antwerp vs Gregorius de Alva

· Book 598, N° 13, October 1547, Schoten, Melchior Charles vs Abbey of Villers, Vincent van Zeverdonck and fellows

· Book 596, N° 143, November 1547, Mierlo, Katerinen Snoecx vs Lenaerden Staelssen, Ruth Henrick Ruttenssoen

· Book 597, N° 64, July 1548, Diest, Henrick Torrekens inhabitant of Diest vs Trudo Skeysers

· Book 597, N° 284, October 1548, Wommelgem, Laureys Wrage vs Bailiff Wommelgem

· Book 596, N° 111, August 1548, Oisterwijk, Village of Kerkeind vs City of Oisterwijk

· Book 596, N° 112, August 1548, Oisterwijk, Burgomaster, aldermen, propriators and city of Oisterwijk vs Attorney General of Brabant, Mathijsen Ducge, Henricke Goidtscauwen and fellows inhabitants of Kerkeind

· Book 595, N° 58, October 1548, Berlecom, Widow Claes Janssoen vs Dierick Goyaertssoene of Merevenne

· Book 597, N° 284, October 1548, Wommelgem, Laureys Wrage vs Bailiff of Wommelgem

· Book 597, N° 8, March 1549, Zeelst, Jans van Boert vs Willem Verwouts

· Book 602, N° 225, August 1549, Wijnegem, Jans vanden Werve vs Franchois Gielis

· Book 598, N° 68, September 1549, Oisterwijk, Joessen Wouterssen vs Mathijsen Wijns and Janne Claes

· Book 599, N° 37, May 1550, Oisterwijk, Joosse Wouterssone, Wouter Janssoon, Jan Jans Crommenzoon vs Jurors Heynsen village near Gestel

· Book 602, N° 76, October 1550, Breda, Cornelis Ablijn, Jan de Hertog vs Count of Nassau

· Book 602, N° 247, Loenhout, Gheerts Vorsselmans vs Gors Putcuyps and fellows

· Book 602, N° 51, April 1554, Helmond, Willem Henrickxsoon of Brussel inhabitant of Mierlo vs Willem Diericxsmets, Jaspar Vrancken, Jan Frans Peeterssoen, Ambrosius Jan Dreycker and fellows

Notes

1. RAB, VB, 593, 30, 1541, Isschot.

2. Nicole Castan, ‘The Arbitration of Disputes under the ‘Ancien Regime’,’ in Disputes and Settlements. Law and Human Relations in the West, ed. John Bossy (Cambridge: Cambridge University Press, 2003), 219–60; Benoît Garnot, ‘Justice, infrajustice, parajustice et extra justice dans la France d’Ancien Régime,’ Crime, histoire & sociétés 4, no. 1 (2000), 103–20; P. L. Larson, Conflict and Compromise in the Late Medieval Countryside: Lords and Peasants in Durham, 1349-1400 (London: Routledge, 2006); Craig Muldrew, ‘The Culture of Reconciliation: Community and the Settlement of Economic Disputes in Early Modern England,’ The Historical Journal 39, no. 4 (1996), 915–42; Miriam Müller, ‘Conflict, Strife and Cooperation; Aspects of the Late Medieval Family and Household,’ in Marriage, Love and Family Ties in the Middle Ages, eds. Isabel Davies, Miriam Müller, and Sarah Rees Jones (Turnhout: Brepols, 2003), 311–30; William M. E. A. Adams, ‘Managing Tragedies: Understanding Conflict over Common Pool Resources,’ Science 302 (2003), 1915–16; Pascal C. Sanginga, Rick N. Kamugisha, and Andrienne M. Martin, ‘The Dynamics of Social Capital and Conflict Management in Multiple Resource Regimes: A Case of the Southwestern Highlands of Uganda,’ Ecology and Society 12, no. 1 C7–6 (2007), 6; Martin Dinges, ‘The Uses of Justice as a Form of Social Control in Early Modern Europe,’ in Social Control in Europe: 1500-1800, eds. Herman Roodenburg and Pieter Spierenburg (Columbus: Ohio State University Press, 2004), 159–74.

3. Maarten Van Dijck, ‘Towards an Economic Interpretation of Justice? Conflict Settlement, Social Control and Civil Society in Urban Brabant and Mechelen during the Late Middle Ages and the Early Modern Period,’ in Serving the Urban Community: The Rise of Public Facilities on the Low Countries, eds. Manon van der Heijden, Elise van Nederveen Meerkerk, and Griet Vermeersch (Amsterdam: Aksant, 2009), 62–88.

4. Müller, ‘Conflict’; Miriam Müller, ‘Social Control and the Hue and Cry in Two Fourteenth-Century Villages,’ Journal of Medieval History 31, no. 1 (2005), 29–53; Miriam Müller, ‘Arson, Communities and Social Conflict in Later Medieval England,’ Viator 43, no. 2 (2012), 193–208; Dinges, The Uses.

5. Garnot, ‘Justice, infrajustice’.

6. Richard L. Kagan, Lawsuits and Litigants in Castile 1500-1700 (Chapel Hill: The University of North Carolina Press, 1981), 99. For Europe and France see Hervé Piant, Une justice ordinaire: justice civile et criminelle dans la prévôté royale de Vaucouleurs sous l’Ancien Régime (Rennes: Presses Universitaires de Rennes, 2006), 212–24; Dinges, ‘The Uses’.

7. Marie-Charlotte Le Bailly, ‘Langetermijntrends in de rechtspraak bij de gewestelijke hoven van justitie in de Noordelijke Nederlanden van ca. 1450 tot ca. 1800,’ Pro Memoria 13 (2011), 30-67; Robert Stein, De hertog en zijn staten. De eenwording van de Bourgondische Nederlanden ca. 1380- ca. 1480 (Hilversum: Verloren, 2014).

8. Dinges, ‘The Uses’, 161.

9. 1 acre = 0.4 hectare.

10. Herman Van Der Haegen, ‘Hoe de Kempense gemeenschappen hun aard verkregen, gebruikten… en verloren. Een overzicht,’ Post Factum. Jaarboek voor geschiedenis en Volkskunde, 1 (2009), 244–5; Peter Hoppenbrouwers, ‘De middeleeuwse oorsprong van de dorpsgemeenschap in het noorden van het hertogdom Brabant,’ Noordbrabants historisch jaarboek 17–8 (2000–01), 45–90; Maïka De Keyzer, Inclusive Commons and the Sustainability of Peasant Communities in the Medieval Low Countries (London: Routhledge, 2018).

11. Wim Blockmans, Jos Mertens, and A. Verhulst, ‘Les communautés rurales d’Ancien Regime en Flandre: caracteristiques et essai d’interpretation comparative,’ Les Communautés rurales. Recueils de la Société Jean Bodin 44 (1987), 223–48.

12. Anton Kos, Van meenten tot marken. Een onderzoek naar de oorsprong en ontwikkeling van de Gooise marken en de gebruiksrechten op de gemene gronden van de Gooise markegenoten (1280-1568) (Hilversum: Verloren, 2010); Hein Vera, … dat men het goed van den ongeboornen niet mag verkoopen. Gemene gronden in de Meierij van Den Bosch tussen hertog en hertgang 1000-2000 (Unpublished thesis at Radboud University, 2011); Martina De Moor, Leigh Shaw-Taylor, and Paul Warde, eds., The Management of Common Land in North West Europe, c. 1500-1850 (Turnhout: Brepols, 2002).

13. De Keyzer, Inclusive commons.

14. Christopher Dyer, ‘Conflict in the Landscape : The Enclosure Movement in England, 1220-1349,’ Landscape History 28 (2006), 21-33; Stephen Hipkin, ‘‘Sitting on His Penny Rent’: Conflict and Right of Common in Faversham Blean, 1595-1610,’ Rural History: Economy, Society, Culture 11, no. 1 (2000), 1–35; Briony A. K. McDonagh, ‘Subverting the Ground: Private Property and Public Protest in Sixteenth-Century Yorkshire Wolds,’ Agricultural History Review 57, no. 2 (2009), 191–207.

15. De Keyzer, Inclusive commons.

16. This was quite similar to the reaction witnessed in England, as stated by Dyer, ‘Conflict in the Landscape’.

17. Stein, De hertog en zijn staten.

18. Aldermen’s benches did act as village courts, resembling the English manorial court system.

19. Karel A. H. W Leenders, Van Turnhoutervoorde tot Strienemonde. Ontginnings- en nederzettingsgeschiedenis van het noordwesten van het Maas-Schelde-Demergebied (400-1350) (Zutphen: Walburg Pers, 1996). Hoppenbrouwers, ‘De middeleeuwse oorsprong’.

20. B. C. M. Jacobs, Justitie en politie in ’s-Hertogenbosch voor 1629. De bestuursorganisatie van een Brabantse stad (Assen: Van Gorcum, 1986); M. J. H. A. Lijten, Het burgerlijk proces in stad en meierij van ‘s Hertogenbosch 1530-1811 (Assen: Van Gorcum, 1987).

21. Jacobs, Justitie en politie; Ph. Godding, ‘Appel et recours à chef de sens en Brabant aux XIVe et XVe siècles: Wie hoet heeft, die heeft beroep,’ Tijdschrift voor rechtsgeschiedenis 65 (1997), 281–97.

22. Ibid; Eddy Put, Inventaris van de Raad van Brabant. Deel 1 archief van de griffies (Brussels: Algemeen rijksarchief 1995).

23. Lijten, Het burgerlijk proces.

24. Jacobs, Justitie en politie.

25. Ph. Godding, ‘Les conflits à propos des lettres échevinals des villes brabaçonnes,’ Tijdschrift voor rechtsgeschiedenis 22 (1954), 308–53.

26. J. Monballyu, ‘De gerechtelijke bevoegdheid van de Raad van Vlaanderen in vergelijking met de andere ‘Wetten’ (1515-1621),’ in Hoven en banken in Noord en Zuid, eds. B. C. M. Jacobs and P. L. Nève (Assen: Van Gorcum & comp., 1994), 1–26.

27. Stein, De hertog en zijn staten.

28. Harald Deceulaer, Inventaris van het archief van de Raad van Brabant, processen van de gemeenten, 1601-1700 (Brussel: Algemeen Rijksarchief, 2013).

29. Monballyu, ‘De gerechtelijke bevoegdheid’.

30. B. C. M. Jacobs, ‘Procedureregels en procespraktijk in Staats-Brabant,’ in Voortschrijdend procesrecht. Een historische verkenning, eds. C. H. van Rhee, F. Stevens, and E. Persoons (Leuven: Universitaire pers Leuven, 2001), 43–62; Lijten, Het burgerlijk proces. The aldermen’s registers and bailiff accounts that were analysed are: RAA, OGA Gierle, 349 & 350, registers of the bench of aldermen, 1512–58; RAA, OGA registers of the bench of aldermen of Rijkevorsel, 145–80; ARAB, Chambre des Comptes, Account of the bailiff of Zandhoven, 12977, 1626–770. ARAB, Chambre des Comptes, Account of the bailiff of Herentals, 12951–2, 1412–577; RAA, OGA Herenthout, 160, ‘vorster account’, 1653.

31. Source : Appendix.

32. Ibid.

33. Alphonse Verkooren, Inventaire des chartes et cartulaires des duchés de Brabant et de Limbourg et des pays d’Outre-Meuse (Brussels: Hayez, 1910–88); A. Erens, De oorkonden der abdij Tongerloo, 4 vols. (Tongerlo: St.-Norbertusdrukkerij, 1948). AAT, Section I.

34. Griet Vermeesch, ‘Access to Justice. Legal Aid to the Poor at Civil Law Courts in the Eighteenth-Century Low Countries,’ Law and History Review 32, no. 3 (2014), 683–714; Christopher W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The ‘Lower Branch’ of the Legal Profession in Early Modern England (Cambridge Cambridge University Press, 2004). Dinges, ‘The Uses’.

35. Namely: 1498–517, 1529–55. The starting point was chosen due to the fact that before 1498 only a limited amount of sentences contained more than a short verdict, without any additional information. The end date corresponds with the end of my research timeframe. The choice for precisely these sample years was based on the sequence of the archives.

36. RAA, Conseil de Brabant, Archives of the registry, General sentence registers.

37. Van Dijck, ‘Towards an Economic Interpretation’; Griet Vermeesch, The social composition of plaintiffs and defendants in the Peacemaker court, Leiden, 1750-54’, Social history 40, no. 2 (2015), 208–29.

38. Source: Appendix.

39. Ibid.

40. Castan, ‘The Arbitration’; Garnot, ‘Justice, infrajustice’; Larson, Conflict and Compromise; Muldrew, ‘The Culture of Reconciliation’; Müller, ‘Conflict’; Adams, ‘Managing Tragedies’; Sanginga, Kamugisha, and Martin, ‘The Dynamics of Social Capital and Conflict Management’; Dinges, ‘The Uses’.

41. Stein, De hertog en zijn staten, 166–7.

42. Garnot, ‘Justice, infrajustice’.

43. Ibid.

44. Ibid., 113–4; P. Hoppenbrouwers, ‘Bloedwraak en vete in de late middeleeuwen,’ Tijdschrift voor geschiedenis 123, no. 2 (2010).

45. Garnot, ‘Justice, infrajustice’, 114–5.

46. Müller, ‘Social Control’, 32.

47. Muldrew, ‘The Culture of Reconciliation’; Anne Bonzon, ‘Les curés médiateurs sociaux dans la France du XVIIe siècle,’ Revue d’histoire de l’Eglise de France 97, no. 238 (2011), 35–56; Dinges, ‘The Uses’.

48. In Kasterlee, the function of ‘aardmeester’ was already described in 1548. J. Van Gorp, ‘Het keurboek van Casterlee,’ Bijdragen tot de geschiedenis 18 (1927). In Arendonk the first reference to an ‘aardmeester’ appeared somewhere around the seventeenth century, even though the label ‘officer’ that was more currently used could also have referred to such functions. In the middle of the sixteenth century, officials were employed to protect the heathlands and villages from drift sands which was the prerogative of aard- or sandmasters. Floris Prims, ‘Keuren der vreyheyt van Arendonk,’ in Feestbundel H. J. Van De Wijer, den jubilaris aangeboden ter gelegenheid van zijn vijfentwintigjarig hoogleeraarschap aan de R. K. universiteit te Leuven 1919-1943, ed. H. Draye (Leuven: Instituut voor Vlaamse topynomie, 1944).

49. Byelaws were the written rules, drawn up by the village governments together with the manorial lord’s representative. For a discussion about the internal power relations in the village governments see Eline van Onacker, Village Elites and Social Structures in the Fifteenth and Sixteenth-Century Campine Area (Turnhout: Brepols, 2017).

50. For extra information on mediators: Garnot, ‘Justice, infrajustice’; Muldrew, ‘The Culture of Reconciliation’; Bonzon, ‘Les curés’; Dinges, ‘The Uses’.

51. Dinges, ‘The Uses’; Garnot, ‘Justice, infrajustice’.

52. AAT, Section IV, Bundle Kalmthout-Essen-Huibergen, 101–4.

53. Piant, Une justice ordinaire, 204; Bonzon, ‘Les curés’; Castan, ‘The Arbitration’; Larson, Conflict and Compromise.

54. Source: Appendix, For a discussion see Maïka De Keyzer, Iason Jongepier, and Tim Soens, ‘Consuming Maps and Producing Space. Explaining Regional Variations in the Reception and Agency of Cartography in the Low Countries during the Medieval and Early Modern Periods,’ Continuity and Change 29, no. 2 (2014), 209–40.

55. Within the selection of sentences collected from the Council of Brabant, 11 cases dealt with the question of fences and enclosures. RAA, VB, 556, 85 (1505) Putte; 560, 33 (1510) Kontich (Nl); 578, 38 (1531) Putte; 579, 132 (1532) Helmond; 582, 41 (1533) Unknown; 583, 105 (1534) Kasterlee; 590, 87 (1540) Rixtel; 590, 15 (1541) Rixtel; 588, 177 (1541) Vilvoorde; 595, 63 (1546) Valkenborch; 602, 51 (1554) Helmond.

56. RAB, VB, 578, 38 (1531) Putte; 579, 132 (1532) Helmond; 588, 177 (1541) Vilvoorde; 595, 121 (1545) Putte; 602, 51 (1554) Helmond.

57. RAB, VB, 602, 51 (1554) Helmond.

58. Dyer, ‘Conflict in the Landscape’; Jean R. Birrell, ‘Common Right in the Medieval Forest: Disputes and Conflicts in the Thirteenth Century,’ Past and present 117 (1987), 22–49. Müller, ‘Conflict’; Müller, ‘Arson’.

59. Peter Blickle, ‘The Criminalization of Peasant Resistance in the Holy Roman Empire: Toward a History of the Emergence of High Treason in Germany,’ The Journal of Modern History 58 (1986), 88–97.

60. RAB, VB, 579, 132 (1532) Helmond; RAB, VB, 588, 177 (1541) Vilvoorde.

61. The reason why this enclosure was deemed legitimate by the court is not specified in this sentence. RAA, VB, 578, 38 (1531) Putte; RAB, VB, 595, 63 (1546) Valkenborch; RAB, VB, 602, 51 (1554), Helmond.

62. Dinges, ‘The Uses’. Müller, ‘Conflict’.

63. Trees growing on the common wastelands and streets were the possession of the lord and could therefore not be felled by community members. Because this was an important lordly privilege, infractions were more severely punished.

64. RAA, OGA Gierle, 349 & 350, registers of the bench of aldermen, 1512–58; RAA, OGA Rijkevorsel, 145–80, registers of the bench of aldermen 1465–609; ARAB, Chambre des Comptes, Account of the bailiff of Zandhoven, 12977, 1626–770. ARAB, Chambre des Comptes, Account of the bailiff of Herentals, 12951–2, 1412–577; RAA, OGA Herenthout, 160, ‘vorster account’, 1653.

65. RAB, VB, 553, 13 (1499) Unknown; 555, 13 (1502) Noorderwijk; 557, 63 (1507) Mechelen; 560, 33 (1510) Kontich (NL); 565, 9 (1510) Turnhout; 564, 5 (1513) Oplinter; 585, 1 (1531) Vechel; 581, 33 (1531) Wechelderzande; 586, 19 (1537) Olmen; 591, 7 (1538) Herentals; 586, 104 (1538) Wijnegem; 587, 3 (1539) Chammont; 588, 177 (1541) Vilvoorde; 593, 219 (1544) Unkown; 595, 134 (1546) Oirschot; 598, 331 (1547) Kontich (nl).

66. RAB, VB, 564, 6 (1508) Putte.

67. Kagan, Lawsuits; Richard L. Kagan, ‘A Golden Age of Litigation: Castile 1500-1700,’ in Disputes and Settlements. Law and Human Relations in the West, ed. John Bossy (Cambridge: Cambridge University Press, 2003), 145–66; Brooks, Pettyfoggers.

68. Kagan, Lawsuits, 99.

69. Piant, Une justice ordinaire, 212–24; Dinges, ‘The Uses’.

70. Le Bailly, ‘Langetermijntrends’.

71. Van Dijck, ‘Towards an Economic Interpretation’, 73.

72. Ibid.

73. Ibid.

74. Stein, De hertog en zijn staten.

75. Piant, Une justice ordinaire; Kagan, Lawsuits; Kagan, ‘A Golden Age’.

76. Muldrew, ‘The Culture of Reconciliation’.

77. Brooks, Pettyfoggers; Kagan, Lawsuits.

78. Source: Appendix.

79. Godding, ‘Appel et recours’.

80. RAB, VB, 549 (1495) Netersel; RAB, VB, 553, 13 (1499) Unknown; RAB, 555, 13 (1502) Noorderwijk; RAB, VB, 557, 63 (1507) Mechelen; RAB, VB, 560, 33 (1510) Kontich (NL); RAB, VB, 565, 9 (1509) Turnhout; RAB, VB, 564, 5 (1515) Oplinter; RAB, VB, 585, 1 (1531) Vechel; RAB, VB, 581, 33 (1531) Wechelderzande; RAB, VB, 585, 198 (1535) Stiphout; RAB, VB, 586, 19 (1537) Olmen; RAB, VB, 591, 7 (1538) Herentals; RAB, VB, 586, 104 (1538) Wijnegem; RAB, VB, 587, 3 (1539) Chammont; RAB, VB, 588, 177 (1541) Vilvoorde; RAB, VB, 593, 219 (1544) Unknown; RAB, VB, 595, 134 (1546) Oirschot; RAB, VB, 598, 331 (1547) Kontich (NL).

81. Godding, ‘Appel et recours’; Stein, De hertog en zijn staten.

82. Source: Appendix.

83. All cases that are labelled as jurisdictional cases deal with claims against unjust actions by officials, or lords disputing the jurisdiction of officials.

84. Source: Appendix.

85. First of all, according to Robert Stein, this is due to the fact that the Council of Brabant was only able to establish itself firmly as a court of appeal from 1470 onwards. Stein, De hertog en zijn staten.

86. Van Dijck, ‘Towards an Economic Interpretation’.

87. Dinges, ‘The Uses’. In the Low Countries the cost of an average case reaching a sentence was 8 pounds or 1/3 of an annual wage of an urban skilled labourer according to Stein, De hertog en zijn staten; Van Dijck, ‘Towards an Economic Interpretation’.

88. Van Dijck, ‘Towards an Economic Interpretation’.

89. Stein, De hertog en zijn staten.

90. Source: Appendix.

91. RAB, VB, 582, 253 (1535) Rijsbergen.

92. For more information about women’s agency in court: Tim Stretton, Women Waging Law in Elizabethan England (Cambridge: Cambridge University Press, 1998). Source: RAB, VB, 582, 253.

93. RAB, VB, 582, 253 (1535) Rijsbergen.

94. Vermeesch, ‘Explaining the ‘Legal Revolution’’; Kagan, Lawsuits; Brooks, Pettyfoggers.

95. Van Dijck, ‘Towards an Economic Interpretation’, 78.

96. Blake Ratner D. et al., ‘Resource Conflict, Collective Action, and Resilience: An Analytical Framework,’ International Journal of the Commons 7 (2013), 183–208; James Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, CT: Yale University Press, 1985).

97. Ratner D. et al., ‘Resource Conflict’.

98. Monballyu, ‘De gerechtelijke bevoegdheid’.

99. RAB, VB, 576, 3 (1522) Leende.

100. RAB, VB, 576, 3 (1522) Leende.

101. RAB, VB, 563, 76 (1512) Koersel.

102. Müller, ‘Conflict’; Müller, ‘Arson’.

103. RAB, VB, 585, 1 (1531) Vechel; RAB, VB, 564, 6 (1508) Putte; RAB, VB, 586, 104 (1538) Wijnegem; RAB, VB, 595, 134 (1546) Oirschot.

104. RAB, VB, 585, 1 (1531) Vechel.

105. J. P. A. Coopmans, ‘De onderlinge rechtsverhoudingen van ‘s-Hertogenbosch en het platteland voor 1629,’ Bijdragen tot de geschiedenis 58, no. 1–2 (1974); Jacobs, Justitie en politie; M. M. P. Van Asseldonk, De Meierij van ‘s-Hertogenbosch: de evolutie van plaatselijk bestuur, bestuurlijke indeling en dorpsgrenzen, circa 1200-1832 (Oosterhout: Leonard, 2001), 73–113; Hein Vera, ‘Rechten op woeste gronden in de meierij van Den Bosch,’ Post Factum. Jaarboek voor geschiedenis en Volkskunde, 1 (2009), 267–76.

106. Stein, De hertog en zijn staten.

107. Raymond Van Uytven, ‘Vorst, adel en steden: een driehoeksverhouding in Brabant van de twaalfde tot de zestiende eeuw,’ Bijdragen tot de geschiedenis 59, no. 2 (1976), 93–122.

108. On the matter of custom in general see: Michael Goldman, ‘‘Customs in Common’: The Epistemic World of the Commons Scholars,’ Theory and society 26, no. 1 (1997), 1–37; Richard W. Hoyle, ed., Custom, Improvement and the Landscape in Early Modern Britain (Farnham: Ashgate, 2011); Peter King, ‘Legal Change, Customary Right and Social Conflict in Late Eighteenth-Century England: The Origins of the Great Gleaning Case of 1788,’ Law and History review 10 (1992), 1–31; E. P. Thompson, Customs in Common (London: The Merlin Press, 1991); Angus Winchester, ‘Statute and Local Custom: Village Byelaws and the Governance of Common Land in Medieval and Early-Modern England,’ in Rural Societies and Environments at Risk. Ecology, Property Rights and Social Organisation in Fragile Areas (Middle Ages - Twentieth century), eds. Bas Van Bavel and Erik Thoen (Turnhout: Brepols, 2008), 309–29.

109. De Keyzer, Jongepier, Soens, Consuming maps.