JOURNAL: Pro Memorie. Bijdragen tot de Rechtsgeschiedenis der Nederlanden XXVIII (2026), nr. 1

(image source: AUP)

Redactioneel (Bram Van Hofstraeten & Paul Brood)
DOI 10.5117/PM2026.1.001.REDA

De zaak Hendrick Schilt. De methodes van uitsluiting van de WIC in Nederlands-Brazilië met betrekking tot haar eigen ambtenaren, 1630-1654 (Florian Herrendorf)
DOI 10.5117/PM2026.1.002.HERR
Abstract:

As trust is essential for maintaining successful commercial relations, groups of traders relied on methods of exclusion to ensure that everyone carried out their agreed tasks. The Dutch West India Company (WIC), being a heterogeneous commercial organisation, therefore, could not function properly without employing formal methods of exclusion, both internally and in the territories it governed, of which taking recourse to courts was the most important. However, historians have failed to include the WIC in current debates on the principal-agent problem in early modern trade. As such, we know very little about the actual functioning of the judicial system in its overseas territories in general, and in its most important colony, Dutch Brazil, in particular. This article tries to address this problem by using a case study focused on a lawsuit against several Company officials to investigate the workings of the legal system of Dutch Brazil.

De civiele rechtspraak van de schepenbank van Thorn. De zaak Christina Halermans versus Dirk Brouns (1685-1688) (Bram Van Hofstraeten)
DOI 10.5117/PM2026.1.003.HOFS
Abstract:

This study examines the civil jurisdiction of the bench of aldermen of Thorn in the early modern period, focusing on its procedural practices, social accessibility, and the influence of learned legal traditions. Contrary to the notion of a general ‘Great Litigation Decline’ in eighteenth-century Europe, Thorn experienced a relatively low but steady rate of civil litigation, with a notable peak in the late seventeenth century. During the eighteenth century the court increasingly relied upon external impartial legal scholars in order to formulate a verdict which may have contributed to a reduced confidence in the local justice system. A detailed case study of Christina Halermans vs. Dirk Brouns (1685–1688) illustrates the court’s procedural complexity, the tactical – and not always equally careful – use of legal citations, and the increasing influence of legal arguments rooted in Roman law and the ius commune. This shift reflects a growing disjunction between local customary law and the academic legal discourse dominating civil litigation, which may have discouraged litigants from turning to the local court. The study suggests that the court’s procedural stagnation during the eighteenth century was less due to internal disorganization and more to the inability of local magistrates to navigate increasingly sophisticated legal reasoning. In addition, the study demonstrates that lawyers (instead of judges) played a crucial role in the reception of Roman law in early modern Europe.

Les immunités des ecclésiastiques ont leurs bornes Een moordende theologant en de vorstelijke rechtsbedeling in de Oostenrijkse Nederlanden (1749-1750) (Dirk Leyder)
DOI 10.5117/PM2026.1.004.LEYD
Abstract:

In december 1749, Martin van Meir, a 23-year-old theologian, commits two gruesome murders in the archiepiscopal seminary of Mechelen. The president of that institution decides to immediately cover up the case. The Privy Council, however, quickly uncovers the murders and obliges the Fiscal Office of the Great Council of the Netherlands in Mechelen to pursue both the murderer and his superior. The legal experts of the central government consider that the clerical immunities used as a defense by some, do not apply to either culprit. Written interventions by the archbishop of Mechelen, Thomas Philippe d’Alsace, in aid of his president (and to a lesser extent, of his homicidal student), put the regalists in Brussels on their heels, but do seem to affect the governor and the empress. Maria-Theresia eventually lets the case rest. But henceforth discussions about the immunity of clergymen will rather be settled in favor of the State.

Hunebedden en het Romeinse recht Over de privaatrechtelijke status van hunebedden en het Romeinse recht in Drenthe (Jelle Jansen)
DOI 10.5117/PM2026.1.005.JANS
Abstract:

The article begins with a sometimes fiery debate on the status of dolmens (Dutch: hunebedden), found mainly in the Dutch province of Drenthe. Lucas Oldenhuis Gratama, a.o. a lawyer, a legal historian and a member of House of parliament, stated that these dolmens were state property. With the introduction of civil codes in the Netherlands goods without an owner became stat-property and dolmens did not have an owner in the pre-codified era since they were nullius according to Roman law and not privately owned under Germanic law. Oldenhuis’ thesis was met with heavy criticism, it was generally assumed that the dolmens were part of private ownership of the land. The debate is nonetheless interesting since it raises questions on the role of Roman law in Drenthe. Scholars inspired by the anti Roman-law Groningen professor of Natural Law Van der Marck around 1800 again and again stated that Roman law played no role in rural Drenthe. This idea was already met with heavy criticism in Van der Marcks days. An examination of Drenthe’s laws as written down during the 17th and 18th century shows that Roman law played a substantial role in Drenthe’s private law, as it did in the surrounding provinces.

Action de la loi. Juridische draagpenningen in de kledijvoorschriften van de Franse Revolutie (Alexis Vejdani)
DOI 10.5117/PM2026.1.006.VEJD
Abstract:

A lasting legacy of the French Revolution and its legal reforms in France (and by extension in the various territories it occupied during this period) is the clothing prescribed for the magistrates and lawyers to be worn in court. Under the old regime the sovereign was the source of the law, therefore his magistrates wore regal robes when in session. The revolutionaries, having firmly denied this principle, designated the general will of the people as the sole source of law and therefore found inspiration with the representatives of third estate to clothe the members of the new judiciary. Along with their sombre black robes came revolutionary insignia like the cockades, ribbons in the three colours of the nation and above all medals in various forms, bearing legends such as La Loi and Action de la loi to signify the triumph of law over the tyranny of men.

Buiten de koninklijke hand? De taaldimensie van de Belgisch-Nederlandse codificatie-opdracht (1816-1830) (Robin Navez)
DOI 10.5117/PM2026.1.007.NAVE
Abstract:

The Belgian-Dutch civil code was the principle legislative project that occupied parliamentarians during the common years of Belgium and Netherlands. Since the union of these territories in 1815, the codification project had to deal with the coexistence of two main languages and the consequences of this new bilingual dimension for the drafting of the civil code to come. After a first unsuccessful attempt, a code was finally prepared by the Parliament between 1821 and 1826 under a commission led by the Belgian judge Nicolaï. A bilingual civil code was eventually promulgated in July 1830, but due to the Belgian secession, the code was considered too ‘Belgian’ and criticized for its similarity to the French one. Focussing on the issue of the drafting in two main languages, this contribution investigates the methodology used by the commission and its consequences on the project, including regarding the political issues.

Book reviews

•  Surinaamse rechtspraak in vogelvlucht, 1651-2024 R. Abhelakh, onder eindredactie van A. Kuipers, 155 Jaar. Gedenkboek Hof van Justitie Suriname. Hof van Justitie, Paramaribo, 2024. 279 pagina’s. ISBN 978-99914-7-568-4. In Nederland verkrijgbaar in de webwinkel van Sampreshan, €49. (Peter van den Berg)

Read the full issue here.