© Springer International Publishing Switzerland 2015An VerscurenThe Great Council of Malines in the 18th centuryStudies in the History of Law and Justice310.1007/978-3-319-09638-4_6
Department of History, Katholieke Universiteit Leuven, Leuven, Belgium
In 1772—as a result of the decision to limit the Great Council’s jurisdiction over Luxemburg—the councilors expressed their worries about a potential abolition of their tribunal.1 In 1785, the members of the Council of Flanders casted doubt on the usefulness of the Great Council, given that it derived its sole reason for existence from its competence as appeal court for the province of Flanders.2 While these remarks must be understood in context, they do suggest that already in the late eighteenth century, doubts were cast over the position of the Great Council, both by critics of the tribunal—the councilors of Flanders—and by its most staunch defenders—its own members.
The questions raised by these two comments are at the base of this dissertation: did the Great Council outlive its usefulness? Was the tribunal indeed characterized by decline, as eighteenth century institutions are generally assumed to be? And what does this mean for the position of the Great Council as instrument of state formation?
In order to answer these questions, we predominantly made use of archival materials, keeping in mind throughout our research that archives are ‘ruins,’ incomplete and disparate remainders of the past, which allow us to reconstruct, at best, a partial picture of the subject. At the same time, the surviving records of the Great Council are incredibly rich and diverse and provide a privileged insight into the eighteenth century court. It also means that the history of the records of the eighteenth century Great Council as well as of its record-keeping were crucial in our understanding of the history of the court itself.
A firm quantitative approach towards the sources, supplemented with qualitative methods, proved to be the only way to arrive at an answer to the previously formulated questions. Statistical processing of Ancien Régime archival materials is always a precarious enterprise. Nevertheless, we believe that a quantitative analysis was imperative to properly measure the changes in case-load at the Great Council over time and, consequently, to evaluate the impact of the tribunal in the eighteenth century. The use of quantitative methods not only made it possible to uncover specific patterns and pose some uncommon questions to the source material, but it also enabled us to map the reach of the administration of justice at the Great Council, and, as a corollary, of the tribunal itself, both as an institution and as an instrument of state-building.
6.1 An Instrument of State Formation?
In the approximately 300 years between the establishment of the Great Council and its eventual demise, society in the Netherlands had changed in multiple perspectives. Apart from the repercussions the 80 Years’ War had on the Southern Netherlands in the late sixteenth and early seventeenth centuries, the eighteenth century in itself was a century in transformation.
During the 1700s, the ideas of Enlightenment started to trickle down into several aspects of life. The first cracks in the authority of the Church appeared, in particular in its relationship with the State. Especially from the 1750s on, the central government, imbued with regalist ideas, was no longer reluctant to oppose the ultramontane Church.
Furthermore, the Austrian Habsburgs increased state intervention in the economic domain. In the course of the eighteenth century, taxation became more rationalized, the power of the guilds was curtailed and a certain proto-industrialization stimulated. At the same time, Maria Theresa managed to extract the Southern Netherlands from the nefarious commercial stranglehold of, in particular, the United Provinces and Great-Britain.3 The result of these economic policies was the emergence of a new class of wealthy people, who could not be fitted into the traditional Ancien Régime society dominated by the three Estates.
Interventions in internal policy-making were limited, given that the constraints of the composite state did not allow for much change in that regard. Yet, certain subtle changes, aimed at more centralization, were made. For example, the authority of the governor was eroded in favor of the Minister Plenipotentiary, who, much more than the former, was an agent of the Viennese government.
Despite the changing society and the influence of the Age of Enlightenment, the administration of justice in the eighteenth century was still very similar to what it had been in the late sixteenth century. Until Joseph II, the Austrian Habsburgs had not put much effort into fundamentally reforming the judicial system or the law, except for some small attempts at humanizing the criminal law under Maria Theresa. Justice in the eighteenth century was still class bound, with the Great Council as the tribunal par excellence for the privileged. In addition, the administration of justice continued to be a slow process, due to the complicated and time-consuming procedure and the fact that the councilors had a financial incentive to let cases drag on.
The central government was apparently unwilling to implement the reforms necessary to adapt the court to the changed circumstances of the eighteenth century. Moreover, the ambiguous attitude of the Austrian Habsburgs towards the Great Council also suggests that they no longer considered the tribunal as the prime instrument it had once been to provide a check on the Provincial Councils or the local authorities. In addition, it can be assumed that the decline in litigation at the Council diminished its ability to work as a tool of centralization and unification.
An active policy was certainly never reserved for the eighteenth century Great Council. Somewhat ironically, the fact that it had to stand by and watch the events unfold from the sideline was the direct result of its special position as the Sovereign’s Court. Having no Estates to rely on for support to defend its rights and privileges—as was the case for the provincial councils—the Great Council was entirely dependent on the government’s whim. While the Great Council might have been an excellent tool of centralization in the fifteenth and sixteenth centuries, it was no longer actively promoted by the monarchs of the eighteenth century to play that role.
Failing to reinforce the Great Council to serve once again as an instrument of state-building might have been a deliberate strategy as part of the Austrian Habsburgs’ attempts—at least until Maria Theresa—not to upset the delicate balance of the composite state. A strong Great Council was bound to hurt the particularistic feelings of the provinces at some point, something which was especially avoided in the period of the Theresian Compromise.
Brabant, in particular, had to be treated with care. From all components of the composite state, Brabant was the most influential, not only because it was wealthy, but also because the Charter of the Blijde Inkomst gave it a privileged status not shared by any other province. Accordingly, its provincial council was powerful, much more so than the Great Council.4 Not only was it sovereign, but—contrary to the Great Council—it also had a right of remonstration, which it could use to block reforms that were considered to be a contravention against the Blijde Inkomst. Indeed, more than any other judicial institution in the Netherlands, the Council of Brabant was a political actor the government could not lightly pass over.
In addition, the position of the Council of Brabant was highly ambiguous. While administering justice in the name of the sovereign, it also represented the inhabitants of Brabant due to its oath to the Blijde Inkomst. Consequently, it was frequently torn between its allegiance to the sovereign and its loyalty to the Brabant Estates, which inevitably caused problems and provided the Council of Brabant with a reputation of unruliness.5 This is no surprise given that there was much more at stake for the Council of Brabant than for the Great Council. While the latter merely attempted to preserve its position and justify its existence towards the government, the former had an entire array of privileges and competences to safeguard. Therefore, the Austrian Habsburgs had every reason not to antagonize the Council or the Estates of Brabant. Indeed, the composite state and the peace it guaranteed benefited the central government, given that the Netherlands had become an important source of financial profit.6
As is well-known, Joseph II broke with this tradition, but he was equally unwilling to use the Great Council as an instrument of state-formation, albeit for different reasons. In the Emperor’s worldview, the Great Council as court par excellence for the privileged must have been something of an anomaly, an outdated remainder of the old order. When he rearranged the entire judicial organization of the Netherlands, there could be no doubt in his mind that the court needed to be abolished. If possible, its members were to be integrated into the new structure, without however in any way giving them a preferential treatment. Indeed, the Sovereign Council of Justice counted as many members from the Council of Luxemburg as from the Great Council.
Apparently, the Great Council never really protested this course of events. If the councilors’ attachment and even devotion to their own institution was indisputable, their loyalty to the emperor must have been even greater. Moreover, even if they had been willing to resist the new measures, they would not have been able to count on outside support: there was not much love lost between the Magistrate of Malines and the Great Council. As the Sovereign’s Council by excellence, it could do nothing but obey the sovereign, even if it meant that the Great Council and its members would be demoted to a position of secondary importance. Only in times of crisis did the Austrian Habsburgs again rely on the tribunal. Yet, once peace had been more or less restored, they degraded it back to a second-rate role. As a result, the Great Council never held (or took) its fate in its own hands, and merely underwent the events of the eighteenth century.
6.2 Superior Courts: Agencies of Change or Preservation?
Unlike the Great Council, the eighteenth century Parlement de Paris—the superior court on which the Great Council was initially based—is often regarded as a powerful tribunal, especially considering its resistance against the policies of Louis XV.7 Indeed, the Parlement of Paris was not only the superior court of justice in France, but also had an extensive authority in the political domain, boasting the right to remonstrate edicts and decrees of the government before registering and publishing them. In that regard, the Parlement de Paris had characteristics of both the Great Council and the Council of Brabant, combining the supra-territorial jurisdiction of the former with the political authority of the latter. Moreover, functioning in a highly centralized state, the Parlement of Paris was the first tribunal of France, a status the Great Council could hardly claim in the Austrian Netherlands.< div class='tao-gold-member'>