Did the Great Council outlive its usefulness? Was this once-prestigious tribunal nothing more than an archaic reminder of past glories which only survived into the eighteenth century because institutions were seldom abolished during the Ancien Régime? Or was the final decade of its existence—marked by serious internal turmoil in the Southern Netherlands and external threats from the French revolutionary armies—different from the rest of the eighteenth century? Given that the Great Council was one of the central government’s few remaining loyal agents in the Austrian Netherlands, it might have used the court to reinforce its authority. Therefore, this chapter examines if, at the very end of the Ancien Régime, the Great Council could once again take up its almost forgotten function as the government’s instrument of power.

It could be argued that in a way—completely independent from the events in France—the demise of the Ancien Régime in the Austrian Netherlands started with the death of Maria Theresa and the ascension to the throne of her eldest son, Joseph II, in 1780. For the first time, the sovereign did not merely act as a preserver of laws and customs, but rather became a reforming legislator,² who attempted to introduce into the Austrian Netherlands a uniform, centralized, homogeneous form of government, thereby aiming to overturn the entire way of living by arranging every aspect of life—from religion to education and leisure to administration and justice—according to his image of the perfect enlightened society. To a large extent, Joseph II’s reforms—although vilified in his own Belgian provinces³—corresponded with the demands of the French revolutionaries in the late 1780s.⁴ Both shared the objective of creating a rational, unified state in which particularistic interests had no place. Their means, however, were entirely different: Joseph II wished to accomplish this program through the exact form of government the revolutionaries reacted against: enlightened despotism.

The Years Prior to 1787⁵

Before introducing his general scheme for centralization and uniformity, Joseph II wanted to personally have a taste of the Southern Netherlands. He waited until the death of Governor Charles of Lorraine to embark on his almost two-month voyage throughout the Low Countries (May 31, 1781 to July 27, 1781).⁶ His trip made him the first ruler since Philip II to set foot in the Netherlands. Although his Belgian subjects were enthusiastic at first, Joseph II was not exactly impressed with what he witnessed. All sorts of complaints, written down in petitions addressed to the emperor, completed the appalling picture he had already formed of the Netherlands. Many petitioners addressed the judicial problems, criticizing the slowness of civil justice, the swiftness which characterized the system of criminal justice, the impunity of crimes that were supposed to be prosecuted by lords, but also the excessive number of advocates, lengthy procedures, exorbitant legal costs, irrational laws which made it possible to appeal ad infinitum in a civil case but did not allow an appeal when a man’s head was at stake, lack of uniformity in procedure and habits, ignorance of the judges on the countryside, etc.⁷ As if the emperor needed any more arguments for a thorough redesigning of the judicial landscape, the judges themselves also complained, first of all about their meager pay, but also about the frequent conflicts of jurisdiction that slowed down the pace of justice.

Already during his stay in the Austrian Netherlands, Joseph II had private conversations with, among others, Goswin de Fierlant, president of the Great Council at that time, to discuss some of his designs for the complete reformation of the judicial system.⁸ For now, the sovereign left the development of a new scheme for both the civil and criminal administration of justice, including the redaction of an entirely new procedural code, to a commission. In the meantime, he made two preliminary adjustments: first, in June 1782, he reduced the médianate to one half of the original amount for all people aspiring to a councillorship in a superior court of justice.⁹ Secondly, in respectively August and November of that same year, he detached the Councils of Luxemburg and Tournai from the Great Council, giving the former the status of a sovereign court and making the sentences of the latter appealable to the Council of Hainaut.¹⁰ Unsurprisingly, the Great Council was not amused with this further reduction of its jurisdiction; yet, the councilors limited their reaction to an official protest letter.¹¹

In the early years of his reign, Joseph II engaged in reforming the cultural and religious sphere—seriously restraining the power of the Church—rather than in implementing his ideas on a thorough reorganization of the judicial and administrative domains. While these ordinances were greeted by a torrent of denunciations and protests by ex-Jesuits and the religious authorities, the general population did not see enough cause to rally against the emperor. And while surely many of his measures were hardly popular—like the limitation of the number of religious holidays, the suppression of the brotherhoods, the restriction of public processions to two a year and the decision that kermesses and other festivals had to be celebrated in each locality on the same day of the year—they did not generate more than a stir.

Misjudging the depth and potential explosiveness of the popular discontent based on these previous experiences, Joseph II proceeded in 1786 with the establishment of a general seminary in Leuven—with a satellite in Luxemburg—thereby extracting the education of the clergy from the control of the bishops. Initially, the protests of Archbishop Frankenberg from Malines and the other bishops were to no avail, but from the pulpit, the clergy aroused the hearts and minds of their flocks, discrediting the new institution by questioning its discipline and the orthodoxy of its doctrines. Revolts broke out among students. What started out on December 5 as a demonstration turned into a riot. Military units were brought in to restore order, but by the end of January 1787, only about 20 students remained at the school. By then Joseph II had already put the final spark to the tinder by alienating another influential segment of the population with the publication of his plans for judicial and administrative reforms. Soon, these two groups—the government’s officials and the clergy—found each other in their struggle against a common enemy, culminating in the Brabant Revolution of 1789.

Sources

Due to the uncertain times at the end of the eighteenth century, official record keeping at the Great Council was somewhat patchy. Especially for the periods of exile following the Brabant Revolution and the first French invasion—respectively during the greater part of 1790 and between roughly November 1792 and February 1793—only a few odd documents are available.¹² To study the time frames in which the Great Council was functioning more or less normally in Malines, we made use of the correspondence of the Great Council itself¹³ and of the ‘recommendations and correspondence’ of its office-fiscal.¹⁴ The former consists of all kinds of letters and requests sent to or by the Great Council. The central government, usually through the Privy Council, is the main correspondent, but other institutions—such as provincial councils—and even individuals also figure in these registers. The subject matter ranges from orders to organize a Te Deum, requests for all sorts of dispensations, conflicts of jurisdiction with especially the Council of Flanders or the Magistrate of Malines, to instructions of the governor on how to respond to a potential invasion by the French.

The registers containing the recommendations and correspondence of the fiscals are somewhat similar in terms of content: advice given by the fiscals alternates with correspondence of the governor, letters of the Privy Council, requests of private persons and complaints of subordinates. The only structure in this mishmash of documents is the date on which they were composed or received, but even this chronological criterion was not rigorously followed.¹⁵

Reconstructing the period after 1794 is even more complicated. With the dissolution of the Belgian institutions, the usual official sources dried up: the last entry in both the correspondence of the Great Council and the recommendations of the fiscals is dated June 18, 1794; the last dictum is registered on June 25th and ends in the middle of a sentence, as if the registrar suddenly had to close his books when he was recording what was probably the final decision of the tribunal as an institution.¹⁶ Apart from some official ordinances—which do not provide much specific information on the Great Council or its members—the regular sources leave us somewhat in the dark from the summer of 1794 onwards.

For the period after the second French invasion, the requests for pensions filed by the Belgian émigrés—conserved in the Finanz-und Hofkammerarchiv in Vienna—constitute an important source and provide particular information on the fate of individual councilors of the Great Council.¹⁷ Some of these files contain requests with a more or less detailed account of the further endeavors and travels of the members of the Great Council; others are empty covers which merely mention the amount of the pension to which the petitioner was entitled. Apart from these requests, the Haus- Hof- und Staatsarchiv preserves a file on the ‘emigrated Great Council’, with some information on the whereabouts of the councilors and especially on how they were treated by the Austrian government.¹⁸

One of the few sources available in Brussels that lifts the veil of what happened after 1794, not merely with (the members of) the Great Council but also with other institutions and functionaries of the Austrian Netherlands, can be found in the archives of the Departement des Pays-Bas de la chancellerie de Cour et d’Etat (Department of the Netherlands of the Chancellery of the Court and the State). In fact, the records of the Department hold the protocols of the deliberations of the Comité établi provisoirement pour la liquidation des affaires financières belgiques (the Provisional Committee for the Liquidation of the Belgian Financial Affairs).¹⁹ Established on February 1, 1797 in Vienna, this Committee was responsible for the current accounts and all other financial matters that remained unresolved after the government left the Austrian Netherlands. Only the affairs concerning the Belgian pensions remained outside the Committee’s jurisdiction; these would be handled as before by the Directoire générale des finances allemandes (the General Council of German Finances). Former councilor of the Council of Finance and the Council of State Limpens was appointed president of the Committee; he was assisted in his duties by former councilors of the Council of Finance Ransonet and Barbier, former councilor of the Privy Council Pouppez,²⁰ former advocate-fiscal of the Great Council Goubau and some lower functionaries.²¹

In its seven-year-long existence—the Committee was dissolved in February, 1804—it discussed a wide range of financial issues, predominantly requests for one or another form of support, but also the settlement of accounts in favor of the Austrian government as well as matters pertaining to the preservation of the records of the dissolved institutions of the Netherlands. The members of the Great Council figure in these documents at various instances—mostly because they claimed to be entitled to a higher pension or to the payment of overdue accounts—making it possible to shed some light on their whereabouts and activities after their exile from the Austrian Netherlands. In addition, these registers confirm and complete the information found in the Viennese archives. In fact, while the records in the Haus- Hof- und Staatsarchiv and in the Finanz- und Hofkammerarchiv constitute the prime source for the whereabouts of the Council and its members from 1794 up until early 1796, the archives of the Committee for the Liquidation of the Belgian Financial Affairs shed some—however partial—light on what happened to them after 1797.

5.2 Endgame: The Demise of a 300-year-old Tribunal

5.2.1 The Build-up: January, 1787–December, 1789

The imperial decrees of January 1, 1787²² announcing several thorough legal and administrative reforms did not come out of the clear blue sky. Over the past few years, the reforms had been meticulously discussed and prepared by different committees and officials. In the end, however, Joseph II unilaterally imposed his own ideas; he wanted nothing less than a standard administrative and legal system directed from Vienna and completely amenable to the sovereign will. Finding people who shared his enthusiasm for this design and who agreed without any objections to his idea for an extreme tabula rasa turned out to be much more complicated.²³

The different stages that eventually led to the promulgation of the 1787 edicts are well known.²⁴ What concerns us in particular, is the relative absence of the Great Council in the entire process. In fact, the Council and its president were only indirectly involved in the redaction of the new procedural code and had no say at all in the new administrative or judicial structures. Instead of choosing de Fierlant as president of the Great Council—allegedly still the first tribunal of the Netherlands—Joseph II specifically appointed the chancellor of the Council of Brabant, Joseph de Crumpipen, to preside over the different Jointes and Committees to prepare the legal reforms.

Admittedly, the Great Council was asked for its opinion on the first draft of the new procedure—written by de Crumpipen together with de Robiano, one of his colleagues at the Council of Brabant—but this was not an exclusive privilege awarded to the Malines tribunal. In fact, all sovereign councils were invited to make comments and suggestions. Moreover, de Fierlant rather than de Crumpipen would have been the obvious choice to prepare a thorough procedural and institutional reform. Not only was he known to be a loyal subject of the Austrian government—like his father-in-law de Neny had been—but he was also particularly competent to work on a new legal procedure as he already had some experience with legal reforms: he was involved in several attempts to rewrite the law under Maria Theresa and drew up two memoranda on the abolition of torture and on the need to eradicate corporal punishments.²⁵ There could be no doubt that he was the perfect man for the job; and yet, Joseph II preferred to appoint the chancellor of the Council of Brabant to direct his legal reforms. Presumably, the sovereign rightfully identified the Council of Brabant as the most powerful and influential tribunal in the Austrian Netherlands, wielding not only legal but also some political power.²⁶ Furthermore, Joseph II might have hoped that the Council of Brabant would more easily accept its de facto abolition from its own chancellor—whose loyalty to the Habsburg Crown was also unquestionable—than from the president of the Great Council.

Reactions to the new legal and administrative structures were not long in coming. Especially the Estates of the different provinces were furious: the January 1 decrees effectively signed their death sentences. The provincial councils’ reaction was more restrained at first, but prodded by the Estates’ deputies, they also took to the offensive, with the Council of Brabant at the forefront. As far as the sources reveal anything about the position of the Great Council, its members seem to have acted subserviently, even though the Council was also scheduled to disappear on May 1, 1787. The last session of the Great Council was probably held on or about April 20, 1787 when an inventory of all ‘pending’ cases was drawn up,²⁷ ready to be sent to the new tribunals.

The fact that the majority of the Great Council’s members were awarded other positions in the new legal structure undoubtedly helped in securing their support. For most of them, in terms of prestige and status, their new functions were a promotion compared to their councillorships in the Great Council or at least maintained the status quo. The top position in the hierarchy—i.e., the presidency of the Sovereign Council of Justice—was awarded to Joseph de Crumpipen, which was no surprise as Joseph II had initially preferred him to draw up the reform plans. De Fierlant had to be satisfied with the presidency of the Court of Appeal in Brussels; councilors Vriesen, Tackoen, de Villers and Diu were among his colleagues. Councilors Van der Fosse and de Laing occupied a seat in the Sovereign Council of Justice while Ludovisi d’Orley was awarded the presidency of the Court of Appeal in Luxemburg. Others fared less well: Cottin was appointed president of the Court of First Instance in Kortrijk, Douglas became his colleague in Ieper, de Waepenaert in Malines—he was the only member of the Great Council to remain in the city—de Stassart in Namur²⁸ and Ghison in Tournai.²⁹

So far, four members of the Great Council remain unaccounted for: de Cock, Wirix, Van Velde, and Van Volxem. The first one probably did not take up any post, as he had already been on leave because of sickness; in fact, he died sometime in 1787. Councilor Wirix as well had already reached an advanced age (74) in 1787 and might have preferred to retire instead of having to move to a new position and, potentially, a new city. Councilor Van Velde left the judicial domain for a seat in the Commission des fondations pieuses (Commission of Pious Foundations) associated with the Conseil du gouvernement général (Council of General Government).³⁰ He would not return to the Great Council until after 1789 when the Conseil was abolished and again replaced by the three Conseils Collatéraux. Van Volxem’s fate is entirely unknown, but his background as a clerical councilor might have negatively affected his chances to be offered a new councillorship.

The appointment of several councilors as examiners of the prospective candidates for positions in the new first instance tribunals also demonstrate that the government made extensive use of the members of the Great Council to put the new structure in place. All applicants had to show a thorough knowledge of, for example, the new civil code that was bound to become operative on May 1st. Councilors Van der Fosse, Van Velde and de Laing were made responsible for respectively Flanders, Limburg and Gelre, and Namur and Malines.³¹ Obviously, Joseph II was confident that the councilors of the Great Council were capable (and trustworthy) enough to select his future judges.

Contrary to their Brabant and Flemish colleagues, the members of the Great Council who were relocated never refused to take on their functions when the new tribunals were supposed to open their doors on May 1, 1787. Attempts to placate the recalcitrant members of the provincial councils failed and massive resistance from predominantly Hainaut and Brabant forced Governors Albert and Marie-Christine to suspend—at least temporarily—the new legal system on May 14th;³² the equally loathed administrative subdivision of the Austrian Netherlands in intendances soon followed.³³

On that very same May 14th, the governors ordered de Fierlant to return to his position as president of the Great Council and to call on all other members—with the exception of de Laing and Van der Fosse who were still in government service—to take back their seats.³⁴ On May 17th, de Fierlant replied with a request for further instructions: should he recall Van Velde, who was still working for the Conseil du gouvernement général and what would the policy be towards councilor Ludovisi, given that the Court of Appeal of Luxemburg had not been included in the ordinance of May 14th and was supposedly still functioning? Moreover, de Fierlant also wanted the case files which had been sent to Brussels on April 20th, including the inventory, to be returned to Malines.³⁵ On May 18th, the president officially announced that the Great Council had resumed its tasks.³⁶ Six days later, the first new lawsuits were distributed.³⁷ Officially, the Great Council had only been abolished for 2 weeks³⁸ and seemed to have smoothly returned to ‘business as usual’ a mere 10 days after the revocation of the new legal system. In October, councilors Van der Fosse and de Laing also returned to the Great Council, leaving only Van Velde’s seat empty.³⁹

Nevertheless, appearances are deceptive: for the entire period up until 1794, a return to normality was never achieved. While the Correspondances of the Great Council may abound in the discussion of petty issues—such as the succession of the chauffe-cire or the épices the councilors were entitled to for working a revision case—there were unmistakable signs that several provincial Estates and councils, as well as an ever larger part of the general population, were still in a rebellious mood. In those insecure times, the Great Council was one of the few courts of justice the government could still rely on. Inevitably, the Council’s steadfast loyalty to the sovereign had repercussions on its reputation to the general public, and contributed to the continued erosion of the court’s popularity.

When over the course of 1788, the inhabitants of Malines became increasingly aware of the Great Council’s role as loyal agent of the Austrian Emperor, they responded by directing their anger at its members. As a result of an order of the Great Council to some seminarians to leave the Archbishopric Seminary—the issue of the General Seminary still aroused the spirits—a mob avenged itself on the councilors on August 2, 1788. Advocate-fiscal de Stassart in particular took a serious beating: not only was he himself physically attacked, but his home was completely ransacked. While the councilors might have been unwavering in their loyalty, they also feared for their own safety, especially since they had become responsible for the prosecution of the August 2 rebellion, and rumors were flying that the garrison in Malines would be reduced.⁴⁰ Trauttmansdorff himself reassured the members of the Great Council that there would be no reduction in the number of troops and that the government was well aware, in the present circumstances, of the need for protection for the Great Council.⁴¹ Multiple case files in the archives of the office-fiscal prove that the Great Council did in fact follow orders and prosecuted several of the troublemakers.⁴²

While all this was going on, the Council also had to deal with opposition from its subordinate tribunals. Both the Magistrate of Malines and the Council of Flanders continued—as they had done in previous times⁴³—to question the jurisdiction of the Great Council. The former, boasting some old privileges, claimed that it only had to publish ordinances that came directly from the government and not those that reached the Magistrate by way of the Great Council.⁴⁴ The aldermen even took advantage of the extraordinary circumstances to attempt to convince the central government of the absolute necessity of this measure: on one occasion, the Magistrate informed the government that it was willing to provide some additional funds that had been requested, but argued that first certain concessions were needed to persuade the guilds in the Breede Raad (Large Council).⁴⁵ If the Magistrate of Malines was again allowed to publish ordinances and decrees without the intervention of the Great Council, it could easily win over the guilds to award the requested money.⁴⁶ The government, however, would not budge.

The Council of Flanders, on the other hand, refused multiple times to send files from appeal cases to the Great Council, arguing that, in those specific lawsuits, appeal was, by definition, not possible.⁴⁷ Every single time, the Great Council had to petition the government in order to establish its jurisdiction, spending a lot of time (and money!) asserting its authority against the claims of its subordinate tribunals.⁴⁸ Nevertheless, in these times, the Great Council generally received full support of the Privy Council.⁴⁹

The government’s reliance on the Great Council as a bulwark against attempts by the provincial councils and Estates to expand their authority became even more evident on June 6, 1789, when Joseph II abolished the Council of Brabant and transferred its jurisdiction to the Great Council.⁵⁰ Two additional chambers were to be established in Brussels, composed of a few councilors of the Great Council in addition to selected members of the Council of Brabant who had been loyal to the emperor.⁵¹ Several rebellious councilors of the Council of Brabant were incarcerated in the citadel of Antwerp;⁵² Chancellor de Crumpipen retreated to his castle in Temse.⁵³ On June 20th, the new councilors of the Great Council were sworn in by president de Fierlant, i.c. Duchesne, Orts, de Villegas de Pellenberg, Anthonis, Van Langhendonck, Staquet and (Jean François) de Fierlant.⁵⁴ They were joined by councilors Van der Fosse, Ghison, Goubau, de Laing, Diu and Cottin from Malines;⁵⁵ de Fierlant personally presided over the Brussels sessions, which de facto reduced the ‘original’ Council of Malines to a mere satellite of its Brussels counterpart. These events clearly underscore the emperor’s wish to have a tribunal in Brabant he could truly rely on.

Over the course of 1789, the Great Council—both in Malines and in Brussels—received ever more powers to fight the imminent rebellion. When on July 26, 1789, secretary Reiniers and his family, as well as the rector of the university Van Leempoel were attacked in Malines, the Great Council was allowed to prosecute the case with only five members, if needed, although for a grand criminel trial, seven councilors were usually the minimum. Moreover, councilor de Steenhault was assigned to temporarily act as deputy procurator-general in order to deal with the enormous amount of criminal trials flooding the tribunal.⁵⁶ On August 12th, an order reached the Great Council, both in Brussels and in Malines that an adequate number of councilors had to remain in office during the upcoming holiday period to deal with criminal trials.⁵⁷ On October 8th, procurator-general Diu was made exempt from assisting in the regular sessions of the Great Council for 6 weeks, with preservation of épices, in order to speed up his work on the large amount of extraordinary affairs.⁵⁸ On October 29th, an additional deputy procurator-general was nominated to the Great Council—advocate de Swerte—with the specific assignment to assist the markgraaf of Antwerp in the prosecution of ‘cas royaux’, so that the Magistrate of Antwerp—which was clearly untrustworthy—would not deal with them.⁵⁹

A letter procurator-general Diu wrote late November 1789 to advocate-fiscal Goubau illustrates that the fiscals of the Great Council worked tirelessly to root out rebellion. In a rather personal message to his colleague he confides his frustrations about his incapacity to deal with the—by now fugitive—Cardinal of Malines and enumerates the actions he is undertaking to prosecute suspected patriots, such as the parish priest of Sint Jan and the secretaries of the Magistrates of Reet and Rumst. Yet, Diu was also aware of the potential futility of their efforts: as an example, he mentioned that, although the Magistrate of Malines was prepared to set up a paling to protect the city from a possible patriotic invasion, it claimed to be unable to find any workers who were willing to erect the palisades. In fact, the only people the Magistrate managed to recruit were ‘handicapped’.⁶⁰

Diu turned out to be right: his letter is the last entry in the Correspondances of the Great Council until October 16, 1790. Trautmansdorff’s attempt to completely reverse the vindictive policies of the latter half of 1789 by reinstating all privileges of the provincial Estates and Councils was to no avail. By late November, the patriotic army was victorious in its first battles. On December 12th, the Austrian troops were forced to leave Brussels. Four days later the Provisional Committee of Malines suspended the Great Council and ordered all former members of the tribunal to turn in their documents pertaining to undecided lawsuits.⁶¹ Contrary to the provincial councils, there was no question that the Great Council could continue its work because it had discredited itself too much. Apart from that, it was also highly doubtful that many members would be willing to switch loyalties from the Austrian Emperor to their former nemeses.

Why did the members of the Great Council never openly protest any of the decisions of the Austrian Emperor—although it is hard to imagine that none of them nurtured any doubts about the complete reorganization of the judicial administration in early 1787—and even actively supported its policies? The most important reason is undoubtedly the special position the Great Council occupied in the Austrian Netherlands: contrary to the Councils of Brabant, Hainaut, Flanders, Namur etc., the Great Council was not associated with provincial Estates and had not sworn an oath to uphold the customs of any specific province; therefore, it was not subject to political pressure from any one interest group. Moreover, the councilors of the Great Council owed their careers, status, position and income solely to the central government; they were neither pressured nor supported by provincial Estates. That said, the majority of them probably genuinely believed in the legitimacy of Austrian rule and saw it as their duty to defend and enhance it. Either way, from 1787 to 1789, the tribunal had proved to be first and foremost the Emperor’s Council.

5.2.2 Revolution⁶² and Restoration: December 1789–November 1792

With its statement of December 16, 1789, the Provisional Committee of the city of Malines declared the Great Council to be deprived of its jurisdiction, not so much because it had been formally abolished but because it was in the first place the ‘Emperor’s Council’ and its members were still bound by their oath. Given that the Belgian provinces no longer acknowledged Joseph II as their rightful sovereign, the Great Council had lost its reason to exist. As a consequence, the members had to turn in the papers they still had in their possession and give up all privileges and exemptions they had enjoyed before being suspended. In the same breath, the Provisional Committee declined every responsibility for the pillaging of certain councilors’ houses, an action inspired by the ‘hatred of the people’ on the first day of the Revolution.⁶³

Yet, even if it was out of the question that the Great Council in its present form could continue to operate, the members of the Provisional Committee soon became anxious to re-establish a new sovereign council in Malines, this time with jurisdiction over all Belgian provinces. Representatives were sent to Brussels to present and defend such a project to Van der Noot en Van Eupen. The need to maintain the prosperity of the city of Malines was the only argument they could put forward in favor of a revived ‘Great Council’, invested with an even more extended authority than the former one.⁶⁴ Apparently, the inhabitants of Malines were suddenly aware of the importance of the detested Great Council for the economic welfare of their city. It is unknown what came of this proposition, but given the provinces’ desire for sovereignty and independence, and their wish to keep common coordinating institutions to a strict minimum, it is virtually impossible that they would consider such a new council.

Either way, the Provisional Committee did not spend any time debating this question before dismantling the Great Council. On December 17, 1789, two aldermen of Malines and a former clerk of the Great Council were delegated to procure the keys to the tribunal’s premises from the porter and to seal its chambers as well as the president’s residence. The entrance to the fiscal chamber had to be forcibly opened, as well as that to the registry, since the porter did not have access to these locations. In the days and weeks to come, several people—mostly former proctors, secretaries or notaries of the Great Council—were busy making an inventory of the papers and transporting several of the more interesting documents to the city hall. Moreover, the Great Council’s stock of candles and wood was confiscated. Finally, the Provisional Committee’s delegates paid a visit to several councilors’ homes such as Pouppez’, Diu’s, Vanderfosse’s, Van Volxem’s, de Laing’s, and Goubau’s to assemble and remove files in their possession. When this operation was finished, around the end of January 1790, the chambers of the Great Council were entirely sealed off. Only once were they reopened again, when on September 24, 1790 the porter informed the Provisional Committee that a shutter of the fiscal chamber had sprung open and that people were throwing stones at the windows. After that, no one entered the grounds until December, 1790.⁶⁵

The fate of the councilors of the Great Council during the Brabant Revolution is much harder to reconstruct. It is certain that they did not go into exile as a corpus. The majority probably followed the government to Luxemburg or abroad. Access to the president’s house, for instance, was in his absence given by one of his domestics. Goubau too was almost certainly away from Malines: it was his servant Joannes Guilliams who was interrogated by the provisional bailiff of the city about what might be found in the advocate-fiscal’s home.⁶⁶ But where exactly did Goubau go during the revolution? Many officials sat out the insurrection in Cologne, but it seems unlikely that Goubau went there as well.⁶⁷ Is it possible that the advocate-fiscal failed to escape in time and that he was captured by the revolutionaries in 1789? In 1796, Goubau himself claimed that he was imprisoned in 1790.⁶⁸ Yet, he also mentioned that his emigration of 1794 was the third one since 1790. Maybe he was released after spending time in prison and decided to flee the Netherlands after all?

Similar doubts about his whereabouts surround councilor Pouppez. It seems that he decided to remain in Malines as he himself opened the door to the delegates of the Provisional Committee searching for papers of the Great Council.⁶⁹ Yet, in 1795, proctor Benckendorff claimed that he spent the majority of his emigration in 1790 in the company of Pouppez.⁷⁰ Potentially, Pouppez initially preferred to stay in Malines, but changed his mind when the scale of the rebellion became clear to him. Indeed, not only Goubau, but also Benckendorff and de Vivario mentioned the persecutions of all loyal subjects at the hands of the insurgents, not to mention the losses and damages in terms of property they all suffered.

We can assume that particularly those councilors who were members of the Great Council of Malines for Brabant had every reason to go into exile, as they were most presumably still in Brussels at the time of the Revolution—and therefore close to the rest of the government which left the country—and were almost certain to incur the wrath of the people if they stayed put. There can be no doubt that they, as the preeminent agents of the emperor’s policies against the Brabant privileges and liberties, were very much disliked by the inhabitants of the capital.

Of those members of the Great Council who did prefer to remain in Malines, only councilor Douglas was found prepared to work for the temporary government and swear the patriotic oath. Stressed as he was by his financial problems, having only limited personal funds, no income from his councillorship and a wife and seven children to take care of—or at least, that was the official explanation afterwards—he had accepted the position of pensionary to the city of Malines.⁷¹ The sources do not reveal if he might have had any sympathies at all for the patriots and their fight for independence from the Austrian crown.⁷² Regardless, his infidelity would not be held against him, because ‘everyone’ testified that, in as much as it had been in his power, he had used his influence for the greater good.⁷³

The ‘United Belgian States’ only lasted for some 11 months before crumbling down, mainly due to internal strife and lack of external support. While Van der Noot never lost hope that he could rally the support of especially Prussia and the United Provinces, it was Emperor Leopold II who in the end was specifically backed up by those two countries as well as by Great Britain. On October 14, Leopold II proclaimed that he would again recognize the laws and privileges of the Netherlands as they had been in force under Maria Theresa and that he would grant a general amnesty. If, however, the patriots did not voluntarily surrender, he would send his armies.⁷⁴ In late November 1790, the Austrian troops marched into the Southern Netherlands, encountering almost no resistance from the remaining badly equipped and incompetently led patriotic army. Early December, the Austrians reoccupied Brussels, marking the beginning of the first restoration.⁷⁵

On January 17, 1791, the new minister plenipotentiary Mercy-Argenteau commissioned de Fierlant to summon the members of the Great Council to resume their office.⁷⁶ Councilor Douglas, as well as all other personnel of the Council who had taken the patriotic oath, were to be reintegrated on the express condition that they would renew their allegiance to the emperor. Van Velde, who had been called to Brussels in 1787, also had to return to his position at the tribunal.⁷⁷ Given that de Fierlant was still absent from Malines, de Waepenaert as senior councilor administered the oath to Douglas, Rijckaert, Van Provijn and Picard and announced that the Council would reassemble on January 26th and have its first day of pleadings within 3 days.⁷⁸

Although the members of the Great Council expressed their joy at the restoration of the Austrian authority and declared they would be willing to forget all the insults and violence they had endured because of their loyalty to the Austrian Crown, their devotion was not unconditional.⁷⁹ They claimed that the difficult times they had recently gone through had forced them to make even larger expenses than normal. In addition, they had not received their salary or the usual income they gained from their work as councilors. Therefore, they asked Governors Albert and Marie-Christine for full compensation of their damages. As their annual salary stood at 1200 florins and they had not been paid from the first of November, 1789 up until January 31, 1791, they should receive 1500 florins each. Moreover, in an average year, their émoluments added up to 2800 florins, which for the same period meant a loss of 3000 florins. They claimed that, altogether, each councilor should be paid 4500 florins in outstanding salary and emoluments. Even though they acknowledged that, strictly spoken, they were not entitled to this payment, they hoped that their loyalty and faithfulness to the emperor would work in their favor.⁸⁰

Apparently, the Austrian government was in no hurry to compensate the councilors. In December 1791, the latter repeated their request and once again reminded the governors of all the offenses, humiliations and even fear for their very lives they had suffered out of devotion to the emperor. The councilors repeated that they were unable to bear the financial losses which, as already mentioned, amounted to 4500 florins. This time, however, they acknowledged that several members—both among those who had gone abroad and those who had stayed at home—already had received either 2700 or 2250 florins, but they considered those payments as compensation for their sufferings rather than as an attempt to compensate their lost revenues.⁸¹ Whether their request was ever granted is unknown; the fact that there are no more petitions does suggest that they were at least partially refunded.

Another controversial issue after the Restoration was the question of how far the implications of the promised return to the situation at the end of Maria Theresa’s reign would reach. For the Great Council, it was especially important to know if it also meant that the Councils of Luxembourg and Tournai would fall again under its jurisdiction. Already in 1782, the Great Council had protested its loss of authority over both councils⁸² and it now saw an opportunity to repeat its plea.⁸³

First, the councilors noted, the Great Council had been established in the fourteenth century [sic] to support the ‘supreme authority’ of the sovereign; accordingly, every assault on its jurisdiction should be regarded as some sort of indirect challenge to his authority. In the case of the Council of Tournai in particular, they claimed that there could be no doubt that the late Emperor Joseph II had made a poorly informed choice when he decided to remove it from the jurisdiction of the Great Council and make the Council of Hainaut responsible for dealing with appeals against its sentences. In fact, the main reason for the transfer of jurisdiction from Malines to Mons had been the proximity and close relationships between Hainaut and Tournai. However, the councilors maintained, except for some small parts of Tournai bordering Hainaut, there were almost no links between the two provinces: Hainaut had its own charters which did not have a single connection to any laws of the other Belgian provinces, while Tournai’s customs were comparable to those of Flanders.⁸⁴ As a consequence, the Great Council argued, the judges in Mons were absolutely unfit to deal with appeals from the Council of Tournai as they were only acquainted with their own particular customs. Moreover, the Malines councilors were assured that the inhabitants of Tournai wished for no more than to be able again to appeal to the Great Council. Finally, they wondered why the Great Council—a tribunal which was not associated with any specific province, which was bound by an oath to the sovereign and which had never quivered in its loyalty—should be less worthy than a provincial council to regain its former jurisdiction.

According to the members of the Great Council, the consequences of the sovereignty awarded to the Council of Luxemburg were even graver than those of the incorporation of the Council of Tournai into the jurisdiction of the Council of Hainaut. While the councilors admitted that some of the issues addressed by the lettres patentes of August 1, 1782⁸⁵ were legitimate—there was a considerable distance between Luxemburg and Malines, certain case files had to be translated, there was a certain amount of export of financial resources from the province to Malines and the possibility to appeal certainly prolonged the settlement of a case—they argued that the drawbacks of Luxemburg’s sovereignty were far greater.

First, the inhabitants of Luxemburg had lost the opportunity to take their appeals to a judge who was not a native of their own province: given that the members of the Council of Luxemburg were obligated to understand and speak German, they were all by definition born there. Moreover, according to the Great Council, almost all councilors of the Council of Luxemburg came from the capital, as there were no decent candidates in the countryside. As a result, the recruitment policy inevitably led to some degree of bias in the sentences of the Council of Luxemburg and made the ability to appeal to the Great Council even more essential.

Secondly, the councilors maintained that the distance between Luxemburg and Malines was, if anything, a counter-argument to letting the Council of Luxemburg keep its sovereign status: the further a provincial tribunal was removed from the direct supervision of the government, the more need there was for a superior court to control its actions and sentences. According to the Great Council, recent events had demonstrated that overly cozy relationships between provincial Estates and councils could prejudice the interests of the sovereign.⁸⁶ Thirdly, the Malines councilors reasoned that both the costs and the translation issues were less than dramatic: only 16 to 17 appeals from Luxemburg were handled at the Great Council each year⁸⁷ and the parties only seldom came to Malines in person, while councilors equally rarely went to Luxemburg on a commission. Moreover, less than a third of those 16 Luxemburg cases had to be translated, so the expenses were very limited, while delays were short and mistakes so far had never occurred. Furthermore, the Great Council asserted that the financial outflow from Luxemburg to Malines—another argument used in 1782 to grant sovereignty to the Council of Luxemburg—amounted to a mere 7000 à 8000 florins each year, while in several cases the litigants were not even inhabitants from the province but merely went to court over properties they had in Luxemburg. As a result, the money drain was almost negligible.

Finally, the Great Council certainly had to admit that appeals caused delays to the final settlement of the case.⁸⁸ Nevertheless, according to the councilors, this was not a sufficient reason to let the Council of Luxemburg keep its sovereignty: the possibility to appeal against a sentence was a basic right and a necessary guarantee for an individual’s civil liberties. Therefore, the disadvantages in no way outweighed the advantages. The Great Council argued that the small number of appeals each year proved that people did not frivolously exercise their right to take their cases to a superior judge. If need be, adjustments could be made to the appeal procedure, such as determining a minimum stake. Either way, the councilors concluded, it was obvious that in the interest of both the public and the sovereign, the Councils of Luxemburg and Tournai should again fall under the jurisdiction of the Great Council.

Although we have no official response from the government, we may well presume that the Great Council’s request was not granted, if only because it would have produced an official ordinance revoking the 1782 decree. The sovereign status of the Council of Luxemburg was probably one of the few reforms of Joseph II that did survive the ravages of time.⁸⁹ There is a certain irony to this, given that it increased the autonomy of a province instead of reducing it, as foreseen in the emperor’s grand scheme of abolishing all provincial councils and bringing the locally based first instance tribunals under the jurisdiction of a central court of appeal, and eventually under the sovereign Council of Justice.

That the Great Council was not restored to its pre-1782 jurisdiction does not mean that the authorities stopped using it as the instrument of sovereign power it had proved to be in the build-up to the Brabant Revolution. Certainly, the Great Council lost its jurisdiction over Brabant: the restoration provided for the reinstatement of the provincial Council of Brabant.⁹⁰ Nevertheless, several members of the Great Council were called forward to take up a seat in provincial commissions, established in Namur and Flanders, which had to deal with compensation requests for damages done during the Brabant Revolution.

The government was somewhat bothered by these claims for indemnification: on the one hand, Leopold II had proclaimed a general amnesty, but on the other hand, he could not ignore the losses of property suffered by subjects loyal to the Austrian Crown. Given that it was deemed unwise to have the provincial councils deal with demands for compensation—it was feared that it might again arouse spirits—commissions were established in the different provinces in order to quietly handle these cases trough reconciliation. The most important task of the commission members was to accommodate the parties and to determine a reasonable compensation for the losses suffered; hopes were high that in this non-confrontational manner, claims could be settled as quietly as possible. In Namur, councilors Ghison and de Steenhault had a seat in the commission, next to a member of the Council of Namur and an alderman of the city;⁹¹ in Flanders, councilors de Laing and Reniers were appointed, together with two members of the Council of Flanders.⁹² Additionally, the Great Council as a corpus received jurisdiction over those claims the Namur commission could not settle amicably; in the case of Flanders, the Great Council did not have such an authority.⁹³

Apart from these institutionalized commissions, the Great Council also had to deal with individual demands, often from subordinate officers who had been mistreated by the revolutionaries in their hometown and were now unable to return to their former positions because they had made themselves persona non grata in the eyes of the residents of the locality where they used to hold office. Apparently, the amnesty of the Austrian government at times went so far that it would not reinstate a former officer who, because of his loyalty to the emperor, had discredited himself in the eyes of his fellow townsmen, but would instead prefer to relocate him to a different city. This, for example, was the case of J.B. Pansius, the former bailiff of Heist-op-den-Berg. He claimed that, as a commissioner for the intendant,⁹⁴ he had been maltreated and even imprisoned because he had been loyal to his rightful sovereign. Since he had now lost the ‘public trust’ of the people of Heist, he could not return to his former post. Exalting his many accomplishments for the Austrian regime—he had been a recruiter for the government and had stood his ground during all times, even when ‘surrounded by his enemies’—he requested the fiscals to be transferred to the now vacant position of bailiff of Malines.⁹⁵

In addition, the fiscals of the Great Council were again at the forefront of the continuing fight against patriotic tumult, although much less so than in the period from 1787 to 1789. It seems that the Austrian government’s strategy during this first restoration consisted in frantically attempting to avoid a new rebellion by not antagonizing dissenting voices and by steering clear of actions that could again arouse a rebellious fervor. In February 1791, minister plenipotentiary Mercy-Argenteau ordered advocate-fiscal Goubau to investigate the rumors concerning the existence of a certain patriotic bureau in Dendermonde and to examine if there were indeed a patriotic flag and some fire-arms lying around in the city hall. Nevertheless, while the minister plenipotentiary clearly wanted the advocate-fiscal to act against any patriotic feelings there might be in Dendermonde, he also explicitly mentioned that the investigations into the matter should be carried out in secrecy.⁹⁶

All in all, both the Correspondances of the Great Council and the recommendations of the fiscals give the impression of a certain level of normality: they abound in the usual conflicts over jurisdiction, especially with the Council of Flanders, in requests from civilians to be appointed to certain positions or to get age dispensations, in the presentation of candidates for a new position at the Great Council, etc. Only a few examples can be found of direct orders to take action against suspected patriots⁹⁷ or (former) French soldiers roaming the Netherlands.⁹⁸ The only entry in the fiscals’ recommendations that more or less stands out, is an order to bring proceedings against all the people who challenged judges because they were loyal to the emperor—which, of course, they had to be.⁹⁹

On April 23, 1792, the French declared war on the Austrian Empire.¹⁰⁰ This proclamation caused serious unrest among the members of the Great Council. Even though the councilors claimed that they were ‘assured’ that the efforts of the French to invade the Netherlands would remain fruitless, they addressed a letter to the governors in early May asking for instructions in case of a French take-over.¹⁰¹ The Great Council wished to avoid a scenario comparable to 1746, when it had been reproached for not having taking any precautions in case of a French invasion. In addition, the councilors reminded the governors that clear instructions—especially with regards to their archives—were even more necessary now, as in the event of an invasion by the French, they would be surrounded by domestic enemies who were to be feared even more than the French troops.

In their reply 3 days later, the governors assured the councilors in Malines that instructions would be given on time; meanwhile however, they should start packing in utmost secrecy the papers of the fiscal chamber as well as those documents that were deemed essential for the sovereign.¹⁰² The next entry in the recommendations is the directive of the governors of November 7, to, if need be, follow the government into exile to Roermond. Preparations should be made, and horses and carriages procured in order to retreat from Malines—with all the essential archives—at the first signal from the government.¹⁰³ That order came the very next day, when it was announced that the withdrawal from the Belgian provinces was scheduled on the morning of November 9th.¹⁰⁴

5.2.3 ‘Liberation’, Restoration, Annexation: November, 1792–June, 1794

5.2.3.1 French Invasion and Exile

On the same November 8th, the governors announced their retreat to Roermond, assigned the administration of the country to the Provincial Estates and the City Magistrates, and ordered them to look after the government’s interests.¹⁰⁵ They also offered the members of the provincial councils of justice the choice between continuing to perform their duties under French rule or withdrawing to any other city under Austrian authority, with a certain preference for the former solution.¹⁰⁶ Again on November 8th, the commander of the French ‘Liberation’ Army Dumouriez proclaimed that the Belgian people were now freed from Austrian rule and promised that the French would not annex the Southern Netherlands or in any other way tamper with the country’s own chosen form of government. Nevertheless, he warned that any village or city that might not enthusiastically embrace the ‘liberty’ offered by the French would be destroyed.¹⁰⁷

The Great Council preferred not to await the French take-over of Malines and left the city at half past three on the morning of November 9, together with its most important records. Contrary to what happened in 1789, not a single member stayed behind in Malines; some did leave their families in the city, others brought them along. Their journey took them to Louvain, Tirlemont—where the army unit of dragons de Latour that had accompanied them parted—Saint-Trond, Tongres and Maastricht.¹⁰⁸ On November 11th, the councilors finally arrived in the city of Roermond where they were accommodated by the Magistrate in the homes of local bourgeois. Four days later, the royal treasury restituted the expenses made for the move from Malines to Roermond and paid the councilors their salaries until the end of January.

On November 16th, the members of the Great Council left Roermond for Düsseldorf, where they arrived the very next day.¹⁰⁹ Minister Plenipotentiary Metternich explicitly ordered the councilors to remain in Düsseldorf as private citizens and to avoid giving a hint of holding office, let alone of composing an active tribunal: that was the condition the Palatine court had stipulated before agreeing to house the members of the Great Council in Düsseldorf. The other governmental councils, such as the Privy Council, stayed behind in Roermond and continued their work from there.¹¹⁰ It is not hard to imagine that the Great Council’s stay in Düsseldorf must have felt as banishment from the center of activity in Roermond.

The representations made by the members of the Great Council to the minister plenipotentiary indeed reveal that they were not exactly happy—neither with their exile to Düsseldorf nor with the restrictions imposed. First of all, they requested an additional allowance on top of their regular salary: according to the councilors, Düsseldorf turned out to be a far more expensive city than Malines and their usual income of 4000 florins a year, which could barely cover their costs at home if they lived modestly, was absolutely inadequate to keep themselves and their families afloat in Düsseldorf. Additionally, a list was attached to the letter with the names of the employees of the Great Council who were responsible for the transport of the Council’s archives and cash reserves, and who should receive a salary proportionate to their responsibilities and qualities. The councilors expressed the hope that—given their unrelenting loyalty and dedication—the minister plenipotentiary would be willing to improve their sorry fate.¹¹¹

Metternich replied that the Great Council should consider a move to a different city if Düsseldorf was too expensive, preferably to someplace where they would be able to continue their usual sessions, such as Duisburg, Rees or Emmerich in Prussian territory or Neuss or Gremberg in the Electorate of Cologne. On November 30th, president de Fierlant brushed that proposition aside. Possibly the Great Council felt that another move to a new city, different from the one in which the other governmental councils resided, was simply not worth the trouble? Not that de Fierlant explicitly mentioned the Great Council’s ‘expulsion’ from the center of activity as a reason to stay put; he rather used an entire array of different arguments: in fact, during a meeting, he had decided together with councilors Van Velde, Ghison, Douglas, Pouppez, Goubau, de Steenhault, and de Guchtenaere that an assembly of the Great Council on foreign territory could not have any legal force. Given that the Great Council only had jurisdiction in a region ruled by the Austrian Crown and that it was for now impossible to move the tribunal to such a location, de Fierlant argued that continuing its sessions was impossible and should therefore not be taken into account as a reason for a move away from Düsseldorf. According to the Council’s president, the only two arguments that should be considered were the safety of the Great Council’s members, records and cash reserves, and financial concerns.

Bearing in mind these two requirements, the members of the Council were convinced that remaining in Düsseldorf was the best solution. Not only would another move inevitably generate additional expense, the councilors claimed that it was also better to be located on the right instead of on the left bank of the Rhine; in fact, the French were already threatening both the Cologne and Prussian territories. De Fierlant added that if Düsseldorf fell prey to the French troops, the councilors could sail up the Rhine to Nijmegen, either to stay there or to disperse and retreat to Bergen-op-Zoom, ’s Hertogenbosch, Breda or any other city where they could survive on a tight budget.¹¹²

It appears that the government tried once more to persuade the Great Council of the advantages of a move to a different location; on December 8, 1792, de Fierlant explained in yet another letter why the councilors preferred to remain in Düsseldorf. First, the coming winter made travel more dangerous, while it was far from certain that a better refuge might be found, given the great number of French emigrants on the move. Secondly, the councilors maintained that the Council’s records could not be safer elsewhere than in a city with a garrison, located on the right bank of the Rhine, in a territory belonging to a neutral power. As a result, the members of the Council were convinced that the present circumstances warranted a prolonged stay in Düsseldorf, especially since winter was bound to slow down the military operations of the French, the Palatine court still remained neutral and the Prussian king was starting to regain some territory. The councilors did not doubt that, if the situation changed, the minister plenipotentiary would warn them as soon as possible, and indicate a new safe haven to retreat to with their records and consigned cash reserves.¹¹³ Until that moment, which they hoped would never come, the members of the Council preferred to remain in Düsseldorf.¹¹⁴

In the meantime, the city of Malines had fallen to the French who—as promised—had handed over their powers to an elected temporary authority.¹¹⁵ On December 22, 1792, several representatives of the Magistrate made their way to the premises of the Great Council in order to secure its records, which were considered to be of great value. The library, the fiscal chamber, the registry, the entrance to the chapel and the parquet, … were all closed off and sealed by mayor Van den Bossche, aldermen Burlet and de Vijlder and registrar Verlinden; sometime later, French commissioners superimposed their own seal. The warden of the Great Council Van den Eynde handed over—for the second time in 3 years—all the keys in his possession, but contrary to the patriots of 1789, the representatives of the Magistrate did not remove any documents or effects.¹¹⁶

The French commissioners were less amenable where the homes and properties of the emigrated councilors were concerned. In early January 1793, alarming reports started to leak through to Düsseldorf. On January 23rd, president de Fierlant informed Metternich of a letter advocate-fiscal Goubau had received from his wife: despite the opposition of the temporary Magistrate, French commissioners had started to seal off the homes of several councilors and had an inventory made of both their movable and immovable properties. At a later stage, all furniture, linens, silverware etc. would be sealed, except for what the individuals who lived in these houses needed. Rather panicky, de Fierlant added that unless a sufficient number of Austrian troops arrived to oust the French, the Belgian provinces would be completely crushed (écrasées).¹¹⁷

Three days later, the president of the Great Council wrote another letter to Metternich, informing him that the French had already taken stock in the homes of advocate-fiscal Goubau, procurator-general Diu, clerical councilor Van Volxem and others. The houses in which neither wife nor husband were present had been put under seal. Wives had been informed that if their husbands did not return within 2 months, everything would be confiscated.¹¹⁸ The many messages de Fierlant sent to Metternich—another one was written on January 29th—betray his nervousness about the situation in the Austrian Netherlands. Metternich, on the other hand, never really responded to these panic-stricken letters. On February 11th, he simply notified the president of the Great Council that he had just returned from a trip to Coblenz and that he merely wanted to let him and his fellow councilors know that the Privy Council had resumed its usual sessions in Wesel.¹¹⁹

Around the same time, the French started to encounter fierce resistance from the Belgian population as they gradually changed their policy. Instead of merely liberating the country and then handing it over to the nationals, they began to interfere ever more in Belgian affairs. By now there could be no doubt that—apart from a small group of Jacobines—there was not much enthusiasm among the general populace to support the war against the Austrians with either funds or manpower. When it became clear that the majority of the Belgians were actively turning against the French, the Austrians saw an opportunity to regain Belgian support. Encouraged by the resistance, Austrian troops crossed the Ruhr on March 1, 1793; the French troops—or what was left of them—retreated, but not before pillaging villages along their path, angered by the refusal of the Belgian citizens to support them. As if he wanted to mark the contrast to the harsh French treatment, Emperor Francis II promised the Belgian people that he would protect the Joyeuse Entrée, the Catholic Church and the Belgian traditions. Within a few weeks, Austrian troops triumphantly entered Brussels.¹²⁰

5.2.3.2 Business as Usual?

On April 2nd, Metternich informed the members of the Great Council that the French had been ousted from the Netherlands and that they could return to Malines to resume their normal activities. Apparently, the councilors were in a hurry to go back to their homes, because only 6 days later, senior councilor de Waepenaert announced that the Great Council would hold its first session on Thursday, April 11th and that the first day of pleadings was scheduled for Saturday April 20th. President de Fierlant, however, would not return: he had in the meantime been appointed to the presidency of the Privy Council.¹²¹ It took another 3 months, until early July, before the new president, Jacques Antoine Le Clerc, was inaugurated in Malines.¹²² During this interval, de Waepenaert as senior councilor did the honors: the Great Council desired to return to ‘business as usual’ as quickly as possible.

Once again, that idea would prove illusory. First of all, the Austrian government suffered from a chronic shortage of funds. While the members of the Great Council were hoping to recuperate the costs spent on transport when returning from Düsseldorf, the amount they could request was restricted to a maximum of 200 florins for councilors and even less for registrars, clerks or secretaries.¹²³ Another sign of this financial distress was the sale of the position of registrar at the Great Council. The office had already been vacant since October, 1792. At that time, three candidates had offered respectively 3600, 4000 and 10,000 florins. When the treasurer had requested advocate-fiscal Goubau’s advice on the matter, he had replied that the position should be sold to the highest bidder—i.c. advocate Van Grootven—given that a registrar ‘did not require any specific talents or extraordinary qualities’.¹²⁴

The French invasion must have left the matter unresolved, because in July 1793, the government informed the Great Council that it should proceed to a new nomination of three candidates. The only condition stipulated was that the candidates should be prepared to offer at least 10,000 florins, and preferably even more, as the cost of the war against the French and the need to protect the Belgian provinces against the ‘tyranny of the enemy’ warranted a considerable contribution to the treasury.¹²⁵ In August, the Great Council could do nothing else but notify the government that no one was willing to pay over 10,000 florins for the vacancy; there was no other solution than to dig up Van Grootven.¹²⁶

In December 1793, the Austrian government addressed the provincial Estates and Councils—including the Great Council—with an appeal to provide the treasury with ‘voluntary patriotic gifts’. Additional funds were necessary in order to protect the country against French despotism and to preserve Catholicism. Consequently, the government called on the people of the Austrian Netherlands in general, and on their representatives in particular, to donate money, but also gold or even silverware, as a gift or loan for the duration of the war.¹²⁷ There could not have been much doubt in the minds of the councilors that, for them, there was nothing voluntary about the gift: a few days after the appeal, the members of the Great Council replied that they ‘wanted nothing more’ than to contribute to the defense of the Belgian provinces. Therefore, the president and councilors had agreed to each donate respectively 800 and 400 florins from their annual salaries for the duration of the war.¹²⁸

Still, the finances of the Great Council itself were also less than healthy. At almost the exact same time that the government asked for a voluntary gift, the Great Council sent a request for financial support: around late December 1793, the total amount in the Council’s caisse des exploits stood at 35 florins, while the expenses that still needed to be paid—for the services of the bailiffs but also for torches, paper, candles, wood, etc.—amounted to 4587 florins.¹²⁹ It is uncertain if the government was willing to provide the necessary funds.

The Council of Finance, in any case, refused to refund the expenses from the different conflicts of jurisdiction the Great Council had with the Council of Flanders during the early 1790s. The Great Council protested to the governor, complaining that the Council of Flanders obstinately persisted in refusing to defer to the letters of appeal awarded by the Great Council in cases of the nullification of a criminal sentence.¹³⁰ According to the councilors, the refusal of the Council of Finance to pay for the expenses incurred by these conflicts of jurisdiction would only serve to undermine the power entrusted to the Great Council to preserve the authority of the sovereign in the provinces. The Great Council feared that, given the provincial councils’ constant aspirations to extend their rights and privileges at the expense of the emperor’s, they would become ever bolder in their attempts to undermine the Great Council’s jurisdiction—and thereby indirectly the government’s authority—if they knew that their challenges to the Great Council’s authority would go unpunished.¹³¹

5.2.3.3 The Central Government’s Carrot-and-Stick Policy

In general, the policy of the government towards the Great Council seemed somewhat equivocal and it is doubtful that it had any well thought-out or uniform strategy on how to use the Council for its own purposes. On the one hand, the central government drew extensively on the Malines tribunal in its fight against its internal enemies—and would do so again—but on the other hand, there was often a lack of support when the Great Council attempted to consolidate or expand its own authority. The issues surrounding the payment of the councilors’ work on conflicts of jurisdiction with the Council of Flanders were one example; the failure to get the Great Council designated as the superior court for the newly conquered region around Valenciennes was another one.

The city of Valenciennes and its surroundings were part of the Spanish Netherlands until the Treaty of Nijmegen of 1678 transferred the sovereignty over the area to the Kingdom of France. In the wake of the conquest of the Netherlands in early 1793, the Austrians managed to get hold again of Valenciennes and its surrounding territories. Anticipating the need to administer this region, the members of the Great Council offered their services as superior judges, founding their claims on seventeenth century precedents.¹³² Yet, the Great Council was not the only contender; the Councils of Hainaut and Tournai also believed they had reason to demand the jurisdiction over the newly-won territory. Given that Valenciennes had been conquered only recently, this discussion seemed somewhat premature, but the Privy Council considered it important enough to address a very lengthy and well-argued advice to the governor, based on the observations of the Jointe for Valenciennes.¹³³

The Council of Tournai’s claims over the jurisdiction of the recently seized territories were not based on any legal precedents, but rather on its geographic proximity and consequently on the easy access the new subjects would have to a superior tribunal. Nevertheless, Tournai did not pretend to be entitled by custom or by law to the jurisdiction over this region. The Council of Hainaut, on the other hand—supported by its Estates—did not demonstrate any moderation in its demands. According to the councilors of Hainaut, the conquest of this ‘district of Hainaut’ had de facto reunited it to the province and therefore also subjected it in law to the jurisdiction of the provincial council. The Council of Hainaut claimed that the fundamental rule concerning the indivisibility of the province of Hainaut left no doubts about the claims it had on the newly conquered territories. Not awarding the jurisdiction to Hainaut would be an assault on the constitutions of the province—which went back to the year 1200—and an infraction on the inaugural oath the sovereign had sworn to the Estates of Hainaut.

In short, the Privy Council saw itself confronted with three claims: two based on historical and/or legal precedents, and one on geographic proximity and accessibility. An additional element that complicated matters and made the return to the old order somewhat problematic, was that the French, since they had come into possession of Valenciennes and its surroundings in 1678, had introduced an entirely new set of laws and habits that no longer conformed to any customs in vigor in the Austrian Netherlands. When asked for its opinion on the issue, the Jointe for Valenciennes advocated for awarding the jurisdiction to the Council of Hainaut.¹³⁴

In its recommendation to the governor, the Privy Council expressed its concerns about Hainaut’s pretentions. Certainly, they were absolutely absurd to begin with, but the main problem was that it seemed imprudent to award the Council of Hainaut jurisdiction over Valenciennes and its surroundings without stipulating any conditions. It was clear to the Privy Council that the Council of Hainaut had no intention of upholding any customs or laws that the French had introduced, but merely wanted to return to the ancient charters that had been in effect before the initial dismemberment of the territories in 1678. The Privy Council worried that any dispositions made for this region by the sovereign or the Jointe that in any way went against the charters of Hainaut, would be regarded as infractions against the privileges of the province and would therefore be ignored. As such, the Privy Council warned that if the jurisdiction was to be awarded to the Council of Hainaut—by preference only provisionally at first—it should be made clear from the outset that the Council must follow the prevailing customs of the conquered territories as well as any new laws that the sovereign or the Jointe prescribed. Referring to its own privileges and charters was out of the question. Obviously, the Privy Council had not forgotten about Hainaut’s rebellions in previous years.

In the end, the Privy Council recommended to divide the jurisdiction. Aware of the sensitivities of the Great Council’s members, and fully conscious of the importance of not disappointing them given their loyalty to the government, the Privy Council advised the governor to restore the jurisdiction the Great Council had exercised before 1678 over the city of Valenciennes and its immediate surroundings. The authority over the remaining areas should be given to the Council of Hainaut, with the exception of the territories that had fallen under the jurisdiction of the Council of Tournai before their transfer to France. The latter would now again be allowed to administer justice in those parts.¹³⁵

In his unusually detailed and well-argued decision, Governor Charles Louis d’Autriche only partially agreed with the Privy Council. While he understood the importance of placating the Great Council, he dismissed the idea of having the tribunal act as a superior court for even a part of the conquered territories. Indeed, the governor believed that the Great Council was probably even less accustomed to their laws than the Council of Hainaut. Moreover, he was apprehensive that assigning the jurisdiction over Valenciennes to a tribunal so far in the interior of the country would be too clear an indication that the Austrian government intended on retaining these recent conquests. Nevertheless, he instructed the Privy Council to clearly explain the reasons behind this decision to the Great Council and assure the Malines tribunal that this temporary provision would in no way prejudice its rights once time had consolidated the new acquisition. Furthermore, there could be no question of a division of jurisdiction between the Councils of Tournai and Hainaut: the governor decided to solely award the jurisdiction to the latter council—at least for now—but with the express demand that its members submitted to the conditions stipulated by the government.

In short, once again, while Charles d’Autriche had certainly displayed some sympathy for the Great Council, the councilors’ request was rebuffed. The fact that exactly the Council of Hainaut—one of the most rebellious tribunals—saw its authority and power extended must have added insult to injury for the Great Council, which had always taken pride in its loyalty to the emperor.¹³⁶

< div class='tao-gold-member'>

Only gold members can continue reading. Log In or Register to continue

Fastest Law Search Engine

Closing Time: The ‘Fortunes’ of the Great Council at the Turn of the Century

5. Closing Time: The ‘Fortunes’ of the Great Council at the Turn of the Century

5.1 Introduction1