Access to Justice: Legal Aid to the Poor at Civil Law Courts in the Eighteenth-Century Low Countries

Abstract

Medieval and early modern rulers commonly proclaimed that protecting the legal entitlements of the personae miserabiles, who included widows, orphans, the chronically ill and the poor, was among their principal duties. The entitlement of the poor to legal services was not a matter of grace but was in fact their good right. For example, widows, orphans, and other personae miserabili had the privilege of being heard in first instance before high courts, so as to save time and costs in pursuing their legal claims. Another example of manifest commitment to legal entitlement for the poor was the refusal of Philip II of Habsburg to consent to measures that would limit the jurisdiction of his Castilian chanceries; the measures had been proposed so as to limit the chanceries' ever-increasing workload, but, because they could also restrict indigents' access to such courts, were rejected by the monarch. At first glance, such inclusiveness appears to have been achieved, particularly in view of the large numbers of petty conflicts brought before formal law courts during the long sixteenth century, leading to a so-called legal revolution. Historians generally acknowledge that broad layers of early modern society made abundant use of civil adjudication in arranging their social and economic relations and interests.

Full text

Access to Justice: Legal Aid to the Poor at
Civil Law Courts in the Eighteenth-Century
Low Countries
GRIET VERMEESCH
Medieval and early modern rulers commonly proclaimed that protecting
the legal entitlements of the personae miserabiles, who included widows,
orphans, the chronically ill and “the poor,”was among their principal
duties.
1
The entitlement of the poor to legal services was not a matter of
grace but was in fact their “good right.”For example, widows, orphans,
and other personae miserabili had the privilege of being heard in first
instance before high courts, so as to save time and costs in pursuing
Law and History Review August 2014, Vol. 32, No. 3
© the American Society for Legal History, Inc. 2014
doi:10.1017/S0738248014000261
Griet Vermeesch is a postdoctoral fellow at the Research Foundation-Flanders
(FWO) attached to the research group Historical Research into Urban
Transformation Processes (HOST) at the History Department of the Vrije
Universiteit Brussels, Belgium <Griet.Vermeesch@vub.ac.be>. The author thanks
colleagues from HOST for their suggestions, as well as Prof. Dr. Georges Martyn
(Ghent University) and the anonymous referees of this journal.
1. Marie-Hélène Renaut, “L’acces à la justice dans la perspective de l’histoire du droit,”
Revue historique du droit français et étranger 78 (2000): 473–95; Woodrow Borah,
“Assistance in Conflict Resolution for the Poor and Indians in Colonial Mexico,”in
Assistance in Conflict Resolution, Transactions of the Jean Bodin Society for Comparative
Legal History, vol. 63 (Brussels: De Boeck Université, 1996): 217–37; Richard L. Kagan,
Lawsuits and Litigants in Castile, 1500–1700 (Chapel Hill: University of North Carolina
Press, 1981), 66–67, 98–99, 103, 105; Ferdinand Elsener, “Der ‘arme man’(pauper) im
Prozessrecht der Grafen und Herzoge von Savoyen,”The Legal History Review 44
(1976): 93–113; and Simona Cerutti, Giustizia sommaria. Pratiche e ideale di giustizia in
una società di Ancien Régime (Torino XVIII secolo) (Milano: Feltrinelli, 2003).

their legal claims.
2
Another example of manifest commitment to legal enti-
tlement for the poor was the refusal of Philip II of Habsburg to consent to
measures that would limit the jurisdiction of his Castilian chanceries; the
measures had been proposed so as to limit the chanceries’ever-increasing
workload, but, because they could also restrict indigents’access to such
courts, were rejected by the monarch.
3
At first glance, such inclusiveness
appears to have been achieved, particularly in view of the large numbers
of petty conflicts brought before formal law courts during the long six-
teenth century, leading to a so-called “legal revolution.”
4
Historians gener-
ally acknowledge that broad layers of early modern society made abundant
use of civil adjudication in arranging their social and economic relations
and interests.
5
2. Kagan, Lawsuits and Litigants, 103; Arthur Gaillard, Le Conseil de Brabant. Histoire,
organisation, procédure, Tome 2, Organisation et procédure (Brussel: J. Lebègue, 1901),
31, 33–34; and M.J.H.A. Lijten, Het burgerlijk proces in stad en meierij van
‘s-Hertogenbosch 1530–1811 (Assen: Van Gorcum, 1988), 46.
3. Kagan, Lawsuits and Litigants,98–99.
4. The phrase “legal revolution”was used by Richard Kagan to describe the enormous
increase of court activity during the long sixteenth century. Kagan, Lawsuits and
Litigants. However, the term can be applied to other regions in Western Europe as well;
Craig Muldrew, The Economy of Obligation. The Culture of Credit and Social Relations
in Early Modern England (New York: St. Martin’s Press, 1998); Christian Wollschläger,
“Civil Litigation and Modernization: The Work of the Municipal Courts of Bremen,
Germany, in Five Centuries, 1549–1984,”Law and Society Review 24 (1990): 261–82;
James A. Sharpe, “‘Such Disagreement Betwyx Neighbours’: Litigation and Human
Relations in Early Modern England,”in Disputes and Settlements. Law and Human
Relation in the West, ed. John Bossy (Cambridge: Cambridge University Press, 1983),
167–87; Samuel Berner, “Florentine Society in the Late Sixteenth and Early Seventeenth
Centuries,”Studies in the Renaissance 18 (1971): 227–35; and Marie-Charlotte Le Bailly,
“Langetermijntrends in de rechtspraak bij de gewestelijke hoven van justitie in de
Noordelijke Nederlanden van ca. 1450 tot ca. 1800,”Pro memorie 13 (2011): 30–67.
5. Julie Hardwick, Family Business. Litigation and the Political Economies of Daily Life
in Early Modern France (Oxford: Oxford University Press, 2009); Fabrice Mauclair, La
Justice au Village. Justice seigneuriale et société rurale dans le duché-pairie de La
Vallière (1667–1790) (Rennes: Presses Universitaires de Rennes, 2008); Hervé Piant, Une
justice ordinaire. Justice civile et criminelle dans la prévôté royale de Vaucouleurs sous
l’Ancien Régime (Rennes: Presses Universitaires de Rennes, 2006); James E. Shaw, The
Justice of Venice: Authorities and Liberties in the Urban Economy, 1550–1700 (Oxford:
Oxford University Press, 2006); Aries Van Meeteren, Op hoop van akkoord.
Instrumenteel forumgebruik bij geschilbeslechting in Leiden in de zeventiende eeuw
(Hilversum: Verloren, 2006); Martin Dinges, “The Uses of Justice as form of Social
Control in Early Modern Europe,”in Social Control in Europe (1500–1800), I, ed.
Herman Roodenburg and Pieter Spierenburg (Columbus: Ohia State University Press,
2004), 159–75; Christopher Brooks and Michael Lobban, eds., Communities and Courts
in Britain 1150–1900 (London: The Hambledon Press, 1997); Christopher W. Brooks,
“Interpersonal Conflict and Social Tension: Civil Litigation in England, 1640–1830,”in
Law and History Review, August 2014684

However, there are indications that raise doubts about whether these
ideals of a socially inclusive judicial infrastructure were fulfilled.
Although the social composition of early modern law courts requires closer
analysis, it has been established that indigent families in cities in France
and the Low Countries resorted to litigation far less often than did more
moneyed citizens.
6
In mid-eighteenth century Leiden, even the markedly
inexpensive Peacemakers court, a small claims court that used a decidedly
transparent procedure, attracted few plaintiffs from among the lower 60%:
the less wealthy households.
7
Moreover, the increasing fees for waging lawsuits likely restricted the
access to official processes of justice throughout the early modern period
for households of modest means.
8
And although not all urban courts stipu-
lated that litigants were to use a legal spokesperson, it is likely that assist-
ance from such experts became indispensable, especially as legal services
became increasingly professionalized and, correspondingly, more complex.
Such increased complexity and costs of litigation must have been part of
the reason for the so-called “great litigation decline”experienced by a
wide range of law courts across Western Europe in the late seventeenth
and eighteenth centuries.
9
The First Modern Society. Essays In English History in Honour of Lawrence Stone, ed.
Augustus L. Beier, David Cannadine, and James M. Rosenheim (Cambridge: Cambridge
University Press, 1989), 357–99; John Bossy, “Postscript,”in Disputes and Settlements.
Law and Human Relation in the West, ed. John Bossy (Cambridge: Cambridge University
Press, 1983), 287–93; and Craig Muldrew, “Credit and the Courts: Debt Litigation in a
Seventeenth-Century Urban Community,”The Economic History Review 46 (1993): 29–31.
6. Hardwick, Family Business, 63; and Van Meeteren, Op hoop, 344–46.
7. Griet Vermeesch, “The Clientele of an Eighteenth-Century Law Court. An Analysis of
Plaintiffs and Defendants at a Small Claims Court in the Dutch City of Leiden, 1750–1754,”
article currently under review.
8. William A. Champion, “Recourse to the Law and the Meaning of the Great Litigation
Decline, 1650–1750: Some Clues from the Shrewsbury Local Courts,”in Communities and
Courts, 184–85; Brooks, “Interpersonal Conflict,”375, 377–82; Dinges, “The Uses,”168.
9. For the Low Countries: Le Bailly, “Langetermijntrends”; Bart Willems, Leven op de
pof. Krediet bij de Antwerpse middenstand in de achttiende eeuw (Amsterdam:
Amsterdam University Press, 2009), 220–24; and Harald Deceulaer, “Guilds and
Litigation: Conflict Settlement in Antwerp (1585–1796),”in Individual, Corporate and
Judicial Status in European Cities (Late Middle Ages and Early Modern Period), ed.
Marc Boone and Maarten Prak (Leuven: Garant, 1996), 171–208. For France: J.
Dickinson, “L’activité judiciaire d’après la procédure civile. Le baillage de Falaise, 1668–
1790,”Revue d’histoire économique et sociale 54 (1976): 145–68; and Colin Kaiser,
“The Deflation in the Volume of Litigation at Paris in the Eighteenth Century and the
Waning of the Old Judicial Order,”European Studies Review 10 (1980): 309–36. For
England: Champion, “Recourse”; and Robert Shoemaker, “The Decline of Public Insult
in London 1660–1800,”Past and Present 169 (2000): 97–131. For Germany:
Access to Justice 685

This article examines the provision of legal aid for the poor, to enable
understanding of how early modern local and “national”governments in
the Low Countries addressed the accessibility of their law courts during
a period when judicial infrastructures were marked by increased costs
and complexity. The article argues that law courts aimed to provide free
legal aid only to a limited subset of the poor, namely, the “deserving
poor,”and thereby generally excluded the larger group of so-called “unde-
serving poor”from having access to justice. That comparatively few law-
suits were waged free of charge is attributable to the limited attraction that
law courts offered to the large group of poor households, as well as to the
liabilities such free legal aid could potentially incur. Legal aid to the poor
was always granted provisionally: if judgement was rendered against the
party litigating free of charge, then the party became liable for payment
of legal costs. Therefore, notwithstanding the putative attentions paid to
such ideals by state authorities and monarchs alike, the provision of
legal aid to the financially disadvantaged did not aim at increasing the
courts’accessibility for all inhabitants. Rather, such provisions were struc-
tured so as to include only a particular socioeconomic segment of all impo-
verished households, and were intended to confirm social hierarchies rather
than to remedy social inequalities.
The Low Countries have been chosen as a focal point because they offer
an interesting case study in legal-historical terms. Law in the Low
Countries drew upon a mixture of three European sources of law: learned
law, customary law, and legislative law. Moreover, the Low Countries were
characterized by legal diversity, reflecting the high levels of urbanization
and the relative autonomy of cities in resolving disputes among their citi-
zens.
10
Therefore, analysis of legal aid for the poor in the Low Countries is
especially relevant to a wider European perspective.
This analysis consists predominantly of an examination of legal aid pro-
vided to the poor in the urban law courts of Leiden, Antwerp, and Brussels.
The main source material consists of petitions for legal aid filed to the
respectively magistrates of Leiden and Antwerp, and documents in the
city archives of Brussels and the national archives in Brussels relating to
deliberations about the provisioning of free legal aid.
11
To broaden the
Wollschläger, “Civil Litigation and Modernization.”For Spain: Kagan, Lawsuits and
Litigants, especially part 2.
10. Raoul C. Van Caenegem, “Reflexions on the place of the Low Countries in European
Legal History,”in Europäische Rechtsdenken in Geschichte und Gegenwart. Festschrift für
Helmut Coing zum. 70. Geburtstag (München: C.H. Beck’sche Verlagsbuchhandlung,
1982), 3–17.
11. Regionaal archief Leiden, Oud Rechterlijk Archief (hereafter RAL, ORA), inv. nr.
144A–O, Dispositiën op rekwesten, 1659–1811; Felixarchief, Privilegekamer, inv. nrs.
Law and History Review, August 2014686

significance of the findings, additional evidence has been gathered from
archives of the High Courts of the provinces of Brabant, Flanders and
Holland (generally considered to have been the “core provinces”of the
Low Countries) and of the urban courts of Rotterdam and Amsterdam
and the High Court of Utrecht, which also served as a local, urban
court. Legal aid for the poor was termed pro deo in the consulted docu-
ments. This term was also used in other kinds of official documents,
including petitions, and signified that taxes (typically seals) on such docu-
ments had been waived in consideration of the poverty of the person
involved. This article will alternately use the terms “free legal aid”and
“pro deo”assistance in referring to legal aid to the poor. As will be dis-
cussed, the lack of normative sources on such legal aid compels researchers
to examine it from the angle of daily practice. This article presents such an
enquiry.
Leiden, Antwerp, and Brussels in the Eighteenth Century: Context
and Sources
During the early modern period, Leiden was—by Dutch standards—a large
town, with an economy dominated by textile manufacturing. In the Dutch
Golden Age, the local textile manufactures attracted workers on a large
scale, resulting in the population reaching approximately 70,000 inhabi-
tants. However, during the eighteenth century, massive shrinkage afflicted
Leiden’s textile industry and its population had contracted to approxi-
mately 30,000 inhabitants by mid-century. Steep inflation and economic
decline saw wide segments of the population fall into poverty. The census
of 1749 recorded more than 1,500 households of the total population of
9,200 households as being recipients of poor relief. However, many
more of the town’s households should be considered as “poor,”for more
than half of the population was taxed quite modestly owing to their limited
resources.
12
The judicial infrastructure of the city of Leiden stemmed largely from
the sixteenth century, when economic growth and large-scale immigration
787–889, Rekwestboeken 1701–1792; Stadsarchief Brussel, Oud archief, Liasse 606,
Procédure, 1699–1794; and Algemeen Rijksarchief Brussel, Geheime Raad (hereafter
ARAB, GR), inv. nr. 552/A-B, Renvois en justice, 18th century.
12. Gerardus P.M. Pot, Arm Leiden. Levensstandaard, bedeling en bedeelden, 1750–1854
(Hilversum: Verloren, 1994); and Herman A. Diederiks, “Beroepsstructuur en sociale stra-
tificatie in Leiden in het midden van de achttiende eeuw,”in Armoede en sociale spanning.
Sociaal-historische studies over Leiden in de achttiende eeuw, ed. Herman A. Diederiks,
Dirk J. Noordam and Heiko D. Tjalsma (Hilversum: Verloren, 1985), 53–55.
Access to Justice 687

of refugees from the south had strongly increased the necessity for the city
government to regulate conflict resolution. Leiden inaugurated a tribunal of
Peacemakers in 1598. The costs of such tribunals were deliberately kept
low, so as to guarantee accessibility.
13
Similar facilities existed in numer-
ous other locations, including Amsterdam, The Hague, Rotterdam,
Haarlem, Gouda, Nijmegen, and Middelburg.
14
In the years 1664–68,
when Leiden’s population numbered roughly 60,000 inhabitants, the tribu-
nal heard approximately 6,000 cases annually.
15
Litigants who were dissa-
tisfied with the Peacemakers’verdict or whose claims exceeded the
tribunal’s jurisdiction could take their cases to the bench of aldermen.
The bench of aldermen was already functioning in the Middle Ages, but
underwent important changes during the sixteenth century. The so-called
roll procedure, an open process in which plaintiffs and defendants
exchanged written “conclusions”and pleaded their respective cases at a
session of the court, had been introduced by mid-century. Roman or
canon law also found its way into judicial proceedings. However, despite
the Peacemakers court being—at least in theory—easily accessible even for
poor households, litigation at the bench of aldermen became somewhat
expensive.
16
The introduction of learned law and written procedures into the proceed-
ings of the benches of aldermen entailed that litigants increasingly avail
themselves of legal spokesmen, notably advocaten and procureurs.An
advocaat (“advocate”) held a university degree in Roman or canon law
and advised his clients on legal matters, delivered oral arguments, and
wrote and signed petitions and conclusions. Likewise, litigants commonly
employed, via written authorization, a procureur (“procurator”) to pursue
their legal business at court. A procureur, although not holding a law
degree, was an official associated with the court and was familiar with
all necessary steps in formal court procedure. He ensured that enough
copies of all documents were available, and deposited the documents at
the court registry.
17
13. Van Meeteren, Op hoop, 226, 236–37.
14. Christiaan M.G. Ten Raa, De oorsprong van de kantonrechter (Deventer: Kluwer,
1970), 158–72.
15. Van Meeteren, Op hoop, 19, 227.
16. Ibid., 274–81.
17. Philippe Godding, Le droit privé dans les Pays-Bas méridionaux du 12
e
au 18
e
siècle
(Brussels: Académie Royale de Belgique, 1987); Raoul C. Van Caenegem, “History of
European Civil Procedure,”in International Encyclopedia of Comparative Law, XVI,
Civil Procedure, ed. Mauro Cappeletti (Tübingen: Mohr, 1972), 66–69; and Georges
Martyn, “Les avocats au Conseil de Flandre (1386–1795): à la recherché d’une
déontologie,”in Les acteurs de la justice, magistrats, ministère public, avocats, huissiers
Law and History Review, August 2014688

The extent to which poor inhabitants of Leiden sought legal aid during
the eighteenth century can be derived from the 402 petitions for free legal
aid that they filed with the bench of aldermen during the years 1751–1810.
These petitions could be directly traced via an extensive index card collec-
tion created by volunteers at the Leiden Regional Archives; these records
include the names of the parties in each case, the case matter, the appeal for
being allowed to litigate pro deo, and the decision taken thereupon by the
bench of aldermen. A selection of the actual registered petitions was also
consulted, especially to uncover why certain requests to litigate pro deo
had been rejected.
18
Lastly, the incidence of pro deo cases was checked
in a selection of roll registers for the bench of aldermen and the
Peacemakers court, so as to control for the comprehensiveness of the regis-
tered and indexed petitions.
19
Similar sources have been examined for eighteenth-century Antwerp.
Several hundred petitions were submitted to the city magistrates each
year and then registered in so-called petition books, which are fully con-
served in the Antwerp city archives. Because of the vast numbers of peti-
tions, it was not practicable to include them all in the research design. To
efficiently find petitions for free legal aid, only those petitions filed pro deo
or for free (for which the charges for document seals and for registering the
petition were waived on account of the petitioner’s poverty) have been
examined for 19 sample years in the eighteenth century. For these 19
years, ninety-seven such petitions were registered.
20
Also consulted for
this analysis were the so-called furnissementsboeken, which present an
overview of official fees paid by litigants, including for pro deo cases.
21
Eighteenth-century Antwerp provides an interesting supplemental case
study. One of the most populous cities of the Southern Low Countries,
it had, since the blockade of the river Scheldt in the late sixteenth century,
become a regional textile centre, with a population of approximately
et greffiers (XIIe-XIXe siècle), ed. René Robaye (Namur: Presses Universitaires de Namur,
2002), 103–19.
18. RAL, ORA, inv. nr. 144A-O, Dispositiën op rekwesten, 1659–1811.
19. RAL, ORA, inv. nrs. 44 V–AA, Dingboeken van grote zaken, 1746–1794; inv. nrs.
47HHH-MMM, Vredemakersboeken, 1750–1769. A limited number of parties made use
of a procureur at the court of the Leiden Peacemakers. More often than not, this was to
obtain approval for having the case heard at the bench of aldermen.
20. The large collection of petitions that were not filed pro deo must have contained
requests to obtain free legal aid also. However, in view of the many thousands of petitions
conserved for early modern Antwerp, it was not feasible to study these petitions.
Felixarchief, Privilegekamer, inv. nrs. 787–889, Rekwestboeken 1701–1792. The sample
years were: 1701, 1706, 1711, 1716, 1721, 1726, 1731, 1736, 1741, 1746, 1751, 1756,
1761, 1766, 1771, 1776, 1781, 1786, and 1791.
21. Felixarchief, Vierschaar, inv. nr. 1561–63, Furnissementboecken, 1685–1793.
Access to Justice 689

50,000 inhabitants. During the first half of the eighteenth century, the city
experienced economic and demographic decline. This was especially
because of foreign competition, which debilitated the once flourishing
export-oriented textile industries. After 1750, however, Antwerp experi-
enced expansion with the emergence of new types of textile manufacturing,
although only limited sections of the population benefited from the econ-
omic boom that accompanied the industry’s restructuring. The new,
non-guild-based manufacturers of mixed fabrics and cotton paid very
low wages and contributed to accelerated impoverishment of small master
guildsmen. Pauperism became a large and growing problem in eighteenth
century Antwerp. In 1770 only 10% of the city’s population relied on gov-
ernmental relief; by 1805, the figure had grown to 18%.
22
As with Leiden,
the actual share of destitute people was probably higher, as only limited
sections of the poor were eligible for poor relief.
The judicial infrastructure of the city of Antwerp experienced comparable
evolutions as had the one in Leiden, including introduction of the roll pro-
cedure, in 1532. Different rolls were maintained on particular weekdays
when certain cases were to be heard. For example, the so-called Monday
roll and Wednesday roll were reserved for small claims, which were settled
orally and without advocaten or procureurs. Generally, however, the emer-
gence of Roman or canon law as a source of law and of written procedures
increased the costs of litigation in Antwerp, especially because (just as in
Leiden) legal spokesmen and report fees now had to be paid.
23
Such developments also occurred in Brussels, the capital of the
Habsburg Low Countries. Apart from its political and administrative func-
tions, Brussels boasted a significant textile sector, although compared with
Antwerp it employed a smaller portion of the working population.
24
Like
Antwerp, however, the Brussels economy declined during the first half of
the eighteenth century, but recovered in the latter half. Industrial restructur-
ing similarly concentrated local workers into large-scale manufactures
where they earned markedly low wages.
25
According to a census of
22. Catharina Lis, “Sociale politiek in Antwerpen (1979). Het controleren van de relatieve
overbevolking en het reguleren van de arbeidsmarkt,”Tijdschrift voor Sociale Geschiedenis
2 (1976): 146–66; Catharina Lis, Social Change and the Labouring Poor: Antwerp 1770–
1860 (New Haven and London: Yale University Press, 1986), 5–38, 110–111.
23. Charles Laenens, De geschiedenis van het Antwerps gerecht (Antwerp: Van de Velde,
1953), 262; Dave De Ruysscher, ‘Naer het Romeisch Recht alsmede den stiel mercantiel’.
Handel en recht in de Antwerpse rechtbank (16de–17de eeuw) (Kortrijk–Heule:
University of Georgia, 2009), 100–105.
24. Roger De Peuter, Brussel in de achttiende eeuw. Sociaal-economische structuren en
ontwikkelingen in een regionale hoofdstad (Brussel: VUBPress, 1999), 96.
25. André Vanrie, “Le XVIIIe siècle,”in Histoire de Bruxelles, ed. Mina Martens
(Toulouse: Privat, 1976), 233–70.
Law and History Review, August 2014690

1755, Brussels hosted almost 60,000 inhabitants
26
; by 1783, the population
had grown to almost 75,000.
27
As in Leiden and Antwerp, the city’s econ-
omic recovery did not improve the circumstances of all inhabitants. In
1755, almost 3,500 households received poor relief and 125 households
were registered as “beggars”; these households totalled 7% of the total
population.
28
By 1784, however, the proportion of “beggars”had increased
from 0.5 to 2.7% of the population, and now totalled almost 2,000 house-
holds. It is not clear which segments of the Brussels population were then
receiving poor relief.
29
Despite this widespread pauperism, which had
become especially exacerbated during the economic crisis of the first
half of the eighteenth century, the urban government did not embark on
comprehensive social reforms.
30
Brussels had boasted a bench of aldermen since the mid-twelfth century.
As with the other examined cities, the sixteenth century brought important
changes to Brussels’judicial infrastructure, heralded by many adjustments
in the preceding century. The roll procedure was adopted as early as the
late fifteenth century and written Roman Canon procedures were intro-
duced. The “burgomasters roll”was instituted, in 1585, to address the
innumerable petty conflicts brought before the alderman. This roll adopted
an oral summary procedure, which did not utilize legal spokesmen.
However, such spokesmen became necessary for cases on the other rolls,
thereby increasing the costs of litigation.
31
The Brussels city archives contain an interesting correspondence
between the city’s bench of aldermen and central governmental institutions
regarding the granting of legal aid to the poor. The letters mostly contain
justifications from the aldermen for refusing certain petitioners free legal
aid. These petitioners had subsequently implored the Privy Council to
intervene, whereupon its officials requested the Brussels aldermen to pro-
vide an opinion about the supplications. Copies of the aldermen’s often
elaborate letters of advice regarding non-granting of legal aid have hence
26. Joseph Verbeemen, “Bruxelles en 1755. Sa situation démographique, sociale et
économique,”Bijdragen tot de Geschiedenis 45 (1962): 205.
27. Eddy Van de Voorde and Jan Verbesselt, “De volkstelling van 1783 te Brussel,”Eigen
Schoon de Brabander 72 (1989): 8.
28. Verbeemen, “Bruxelles en 1755,”220.
29. Van de Voorde and Verbesselt, “De volkstelling van 1783 te Brussel,”8, 11.
30. Paul Bonenfant, Le problème du paupérisme en Belgique à la findel’ancien régime
(Brussels: Palais des Académies, 1934), 19–20.
31. Philippe Godding, “Comment la justice échevinale a pu faire face aux besoins de villes
en expansion: le cas du Brabant (XIIe–XVIIIe siècles),”in Les acteurs de la justice,7–13;
Renée Pierard-Gilbert, “Les procès devant le magistrat de Bruxelles au XVIIIe siècle. Leur
rapport à l’histoire de la ville,”Annales de la société royale d’archéologie de Bruxelles
fondée à Bruxelles en 1887, 51 (1962–1966): 201–17.
Access to Justice 691

been conserved in the Brussels city archives.
32
These sources offer an
extraordinary glimpse into the attitudes of a local government concerning
legal aid for the poor.
Similarly illuminating is a collection of correspondence found in the archives
of the central governmental institutions of the Southern Low Countries,
containing letters and memoranda from officials of the Privy Council in
response to petitions for free legal aid. This source also contains relatively
extensive considerations about legal aid for the poor, and helps in uncovering
the profile of litigants eligible for such aid.
33
Together, these sources provide a
strong basis for ascertaining the procedure and aims of how three particular
cities in the Low Countries—a waning textile center, a transforming textile
centre, and a capital city—administered legal aid for the poor.
The Origins of Legal Aid to the Poor
In medieval and early modern Europe, the entitlement afforded to the poor
(of the personae miserabiles category) for free legal services pertained to
natural and divine rights. Medieval religious practices constituted the basis
for early modern facilities of legal aid to the poor. Ever since the premo-
dern juridical infrastructure had emerged in the twelfth century, churchmen
had held that personae miserabiles should be able to protect their claims in
the same way as could more affluent members of the community. Legal aid
to the poor is a recurring theme in the Bible and was considered by Saint
Augustine to be among the works of mercy. The church resolved in the
twelfth century that clerics were to defend the poor for free in church
courts. Commentators on canon rights considered any litigation involving
the poor and oppressed to be subject to the jurisdiction of church courts.
34
Clearly, the emergence of the category of personae miserabiles related to
tensions between the medieval church and state concerning jurisdiction and
authority.
35
32. Stadsarchief Brussel, Oud archief, Liasse 606-A, Procédure, 1699–1794.
33. ARAB, GR, inv. nr. 552/A, Renvois en justice, Pro deo, 1734–1786, 1791–1794.
34. James A. Brundage, “Legal Aid for the Poor and the Professionalization of Law in the
Middle Ages,”The Journal of Legal History 9 (1988): 170–72, 176, footnote 12; James A.
Brundage, “Widows as Disadvantaged Persons in Medieval Canon Law,”in Upon My
Husband’s Death. Widows in the Literature and Histories of Medieval Europe ed. Louise
Mirrer (Michigan: University of Michigan Press, 1992), 193–206.
35. See, for an overview of the legal origins of the term persona miserabiles: Thomas
Duve, Sonderrecht in der Frühen Neuzeit. Studien zum ius singulare und den privilegia mis-
erabilium personarum, senum und indorum in Alter und Neuer Welt (Frankfurt am Main:
Vittorio Klostermann GmbH, 2008).
Law and History Review, August 2014692

In canon law, personae miserabiles were entitled to procedures that were
primarily oral, in which legal advisors were absent. Such privilege was
included in the Corpus Iuris Canonici and was later adopted by urban
legal administrations.
36
These special procedures were informed by con-
siderations that personae miserabiles were less able to assume legal fees,
and the fact that their conflicts generally related to minor issues.
37
Churchmen were not the only authorities to have considered the issue of
legal entitlements to the poor. Since the thirteenth century, the Spanish
royal chanceries had employed abogados de pobres,
38
and cities elsewhere
began to provide similar services, for example in fifteenth-century
Northern Italy and in the Savoy.
39
The first extensive ordinance that
Charles V decreed pertaining to the arrangement of civil procedure in
the Low Countries, in 1531, included a stipulation regarding legal aid to
the poor. Article 21 of the ordinance stated that all employees, advocaten,
and procureurs of the princely courts were expected to assist poor subjects
“for the love of God”—that is, free of charge—and to do so in the same
way that they served the rich. Those who failed to do this would face pun-
ishment. Subsequent ordinances from 1558 and 1604 on juridical pro-
cedures reiterated this stipulation, although the warning about
punishment was omitted. Advocaten were forbidden to refuse poor clients
and were required to serve them free of charge.
40
Various local regulations
regarding civil procedure and oaths sworn by urban procureurs and advo-
caten upon assuming office contained similar phrases as those in the 1531
ordinance.
41
Thus the “good right”of the weak to obtain legal aid was included in
sixteenth century regulations restructuring civil procedures. However,
until the eighteenth century, the only official regulation about legal services
to the poor concerned the fairly vague obligation for officers and servants
of law courts to serve such people. Formal regulations usually included
36. Elsener, “Der ‘arme man’,”93–113; and Cerutti, Giustizia sommaria.
37. Elsener, “Der ‘arme man’,”101; and Richard H. Helmholz, The Spirit of Classical
Canon Law (Athens, Georgia: University of Georgia Press, 1996), 128–32.
38. Kagan, Lawsuits and Litigants, 13, 66–7.
39. Brundage, “Legal Aid for the Poor,”174; Elsener, “Der ‘arme man’”; and Alice Briod,
L’assistance des pauvres au moyen âge dans le Pays de Vaud du commencement du moyen
âge à la fin du XVIe siècle (Lausanne: Editions Spes, 1926), 26.
40. Jules Nauwelaers, Histoire des avocats au souverain Conseil de Brabant, vol. 1
(Brussels: E. Bruylant, 1947): 334–35; Gaillard, Le Conseil de Brabant, vol 2, 122.
41. Antwerp: Felixarchief, Vierschaar, inv. nr. 24, Rechten en Costumen der Stad
Antwerpen, Maniere van procederen, enz. Commentaria, early 17th century;
’s-Hertogenbosch: Lijten, Het burgerlijk proces, 309; Amsterdam: Dini Helmers,
‘Gescheurde bedden’. Oplossingen voor gestrande huwelijken, Amsterdam 1753–1810
(Hilversum: Verloren, 2002), 172; and Diest: Nauwelaers, Histoire des avocats, 336.
Access to Justice 693

only minor or intangible sanctions for noncompliance with this guideline.
The seventeenth century author de Wynants, for example, opined that prac-
titioners who refused to serve the poor would have to justify themselves
before God.
42
However, as evidenced by a late seventeenth century liti-
gant’s testimony about the utter disinclination of Brabantine rural courts
and their practitioners to provide poor litigants with legal aid,
43
few prac-
titioners were much troubled by such repercussions. Joanna Catharina
Huijbrechts, a single mother of five young children in Antwerp, similarly
lamented in 1726 that even an impoverished woman in her circumstances
could find no support from any advocaat or procureur although “according
to law and because of Christian love they are required to help the poor.”
44
However, in many law courts across the early modern Low Countries,
poor litigants could and did acquire free legal aid that had developed
through practice, although they did so in limited numbers, as will be
explained. Generally, litigants did not depend (solely) on the willingness
of individual advocaten and procureurs to provide legal aid. More often
than not, the law court assigned the advocaat and procureur who would
serve the poor litigant. In Leiden, Antwerp, and Brussels, the city govern-
ment—which also acted as a local law court—decided, upon receiving a
formal petition for such aid, whether the petitioning party was entitled to
assistance.
45
Some law courts—for example, in Diest—assigned their
most junior advocaten and procureurs to serve poor litigants. Other
courts—such as the Court of Holland—randomly delegated such services
to the advocaten and procureurs it employed.
46
Performance on behalf
of poor litigants was monitored by colleagues and by the judges of the
law courts.
47
42. Nauwelaers, Histoire des avocats, 334.
43. Georges Martyn, “Tussenkomsten van de Geheime Raad in rechtbedelingsperikelen
(17de–18de eeuw): op zoek naar leidende beginselen (enkele bedenkingen),”in:
Voortschrijdend procesrecht. Een historische verkenning, ed. Remco Van Rhee, Fred
Stevens and Ernest Persoons (Leuven: Leuven University Press, 2001), 177–78.
44. Felixarchief, Privilegekamer, inv. nr. 815, Rekwestboek 1726–1727, folio 204v–205r.
45. For Leiden: RAL, ORA, inv. nrs. inv. nr. 144A–144O, Registers van dispositiën of
requesten, 1659–1810. For Antwerp: Felixarchief, Privilegekamer, inv. nrs. 787–889,
Rekwestboeken, passim. For Brussels: Stadsarchief Brussel, Oud archief, Liasse 606,
Procédure, 1699–1794.
46. Nationaal Archief, Hof van Holland, inv. nr. 5943, Register van de namen van bij het
Hof geadmitteerde advocaten, 1593–1796 en procureurs, 1569–1794; inv. nr. 5946,
Advocaten en procureurs; and Nauwelaers, Histoire des avocats, 336.
47. See, for an example from eighteenth-century Amsterdam: Stadsarchief Amsterdam,
Collectie handschriften (5059), inv. nr. 55, Aantekeningen van M. Weveringh Anton betref-
fende het verhandelde in de schepenbank (...), 1765–1777, folio’s 59 and 127.
Law and History Review, August 2014694

In addition to the efforts undertaken by law courts to provide free legal
aid, numerous cities in the Southern Low Countries also witnessed, in the
sixteenth and seventeenth centuries, the emergence of legal confraternities
devoted to Saint Yves.
48
Saint Yves had been a lawyer in the thirteenth
century; he was canonized in 1347 by merit of having devoted his life
to providing legal aid to the poor.
49
Generations of law practitioners hen-
ceforth followed his example, and, at least in Antwerp, Mons, and Ghent,
the Saint Yves confraternities actively engaged in such activities. The
renewed vigor in the veneration for Saint Yves should be considered
part of the Counter-Reformation’s revitalizing of faith and religion-inspired
community building. For example, in 1630, the Antwerp bishop Johannes
Malderus urged local practitioners to provide legal aid to the poor. In 1677,
the advocaten of the Council of Flanders petitioned the Pope to establish a
confraternity whose explicit purpose would be organizing legal aid to those
who could not afford it.
50
The resultant confraternity assigned ten advoca-
ten and eight procureurs for these purposes.
51
To what extent did poor
households draw upon these facilities?
The Limited Use of Legal Aid for the Poor
Ascertaining an overview of the number of pro deo litigants at early mod-
ern law courts is a problematic undertaking. In theory, the lawsuits waged
48. Georges Martyn, “Een Oudenaards stadsreglement op de ‘nering’van advocaten en
procureurs (1662),”Handelingen van de Koninklijke Commissie voor de uitgave der oude
wetten en verordeningen van België 50 (2012): 133–45; Hilde de Ridder–Symoens, “The
Growth of Civil Society: The Emergence of Guilds of Lawyers in the Southern Low
Countries in its European Context (The Sixteenth And Seventeenth Century),”in The
Reach of the Republic of Letters. Literary and Learned Societies in Late Medieval and
Early Modern Europe, ed. Arjan Van Dixhoorn and Susie Speakman Sutch (Leiden:
Brill, 2008), 340; Sien Van Seeveren, ‘Voor tghemeene welvaert’. De Sint-Ivogilde van
het Brugse Vrije (1591–1791). (Masters diss., University of Ghent, 2005); and M.
Gaillard, “La confrérie de St-Ivon et le bureau de consultation gratuite à Gand,”Bulletin
de l’Académie royale de Belgique 20 (1853): 1–27.
49. Anette Rieck, Der Heilige Ivo von Hélory (1247–1303). Advocatus pauperum und
Patron der Juristen (Frankfurt am Main: Peter Lang, 1998).
50. De Ridder-Symoens, “The Growth of Civil Society,”345–48; and Guido Van
Dievoet, “De H. Ivo, advocaat van de armen, en het collegium utriusque iuris van de
oude universiteit Leuven,”Jaarboek van de Geschied- en Oudheidkundige Kring voor
Leuven en Omgeving 34 (1994): 187.
51. Peter Van Peteghem, “De broederschap van de heilige Ivo en de Gentse advocaten
tijdens het Ancien regime. Op zoek naar sporen van de cultus van de heilige Ivo in het
graafschap Vlaanderen, maar vooral te Gent,”Tijdschrift voor privaatrecht 45 (2008):
1398–99.
Access to Justice 695

pro deo should be identifiable from the roll registers, which recorded the
names of parties for each day’s court proceedings. However, these registers
contain hundreds of entries per year. Moreover, in cataloguing the litigants,
each registered name must be accurately entered into a database, so as to
prevent overlapping counting of parties who appeared in multiple court
cases.
Another research strategy, applied only to Leiden, was adopted: this
involved checking the temporal distribution of the 402 petitions for free
legal aid that were submitted to that city’s bench of aldermen over the
years 1751–1810.
These figures show the strikingly small extent to which households
sought free legal aid to settle their conflicts. Only between three and eigh-
teen requests for free legal aid were filed yearly, from among a population
ranging from 38,105 inhabitants in 1750 and 31,676 inhabitants in 1809.
52
The limited number of pro deo litigants is all the more surprising in view of
the sizable numbers of poor households in eighteenth-century Leiden.
Although no exact figures are available for how many pro deo litigants
were seen at other law courts, archival evidence suggests that these num-
bers were also generally low. Documents containing overviews of fees pay-
able by litigants at the Council of Flanders
53
and in Rotterdam
54
yield only
afewpro deo cases yearly. The so-called furnissementsboeken of
Table 1. Temporal Distribution of the 402 Petitions for Free Legal Aid that were
Submitted to The Bench of Aldermen of the City of Leiden over the Years 1751–1810.
Years No. of Petitions
1750–1759 39
1760–1769 64
1770–1779 73
1780–1789 77
1790–1799 90
1800–1809 59
Total 402
Source: Regionaal Archief Leiden (ORA), Oud Rechterlijk Archief (ORA), inv. nrs. 144A-
144O, Registers van dispositiën op rekwesten, 1659–1810.
52. Pot, Arm Leiden, 308.
53. Rijksarchief Gent, Raad van Vlaanderen, inv. nrs. 8076–8289, Rapportboeken, 1558–
1789. These documents were consulted at random.
54. Gemeentearchief Rotterdam, Oud Rechterlijk Archief, inv. nrs. 341–405, Civiele rol,
1702–1810.
Law and History Review, August 2014696

eighteenth century Antwerp also offer an overview of such fees, and, like-
wise, record few pro deo cases.
55
Despite the clear benefits that free legal aid afforded to them, poor
households appear to have made relatively little use of the option. This
can be explained by factors on the demand side (reluctance of poor house-
holds to make use of legal aid), as well as by factors on the supply side
(reluctance to provide legal aid to the poor). I will first discuss possible fac-
tors on the demand side. Factors on the supply side will be discussed in the
next section of this article.
Apart from the cost of litigation, there are three major reasons why
poverty-stricken households would have been discouraged from turning
to law courts to settle disputes. First, such parties may not have owned ade-
quate possessions to trigger disputes. For example, households with limited
resources entered into fewer contractual agreements than did wealthier
ones, and were thereby less often involved in the sorts of conflicts that
led to lawsuits. Second, the complexity and lack of transparency of legal
procedures possibly hampered inclination to consider judicial action.
Third, there may have been a sociocultural gap between potential liti-
gants and those who dispensed the law, which was daunting for those of
lower social groups. Recent research on the social composition of the
plaintiffs (and defendants) of the mid eighteenth century Leiden
Peacemakers court provides indirect evidence for such gap. The
Peacemaker court was a small claims court that boasted a strikingly
quick, inexpensive, and transparent oral procedure that was based on
“good judgment”rather than formal law. Therefore, all inhabitants of
mid eighteenth century Leiden could easily afford litigation at the
Peacemaker court, even for very small claims, and even if they were illit-
erate. Nonetheless, those among the lower 60% of households (the less
wealthy) scarcely used this particular small claims court. Only 2% of all
plaintiffs belonged to the (poorest) bottom quintile of the households of
Leiden’s population, whereas at least 84% of the plaintiffs were from the
most affluent 40% of households. The Leiden Peacemakers court was,
therefore, a distinctly elitist institution, even in light of its low cost and
markedly transparent procedure.
56
For mid eighteenth century Leiden at
least, this provides indirect evidence that the limited use of free legal aid
can be explained to some extent by a sociocultural gap between, on one
hand, poor households and lower middling groups and, on the other, the
elite groups who staffed the law courts and starkly predominated among
plaintiffs and defendants alike. Direct research into the attitudes of the
55. Felixarchief, Vierschaar, inv. nr. 1561–63, Furnissementboecken, 1685–1793.
56. Vermeesch, “The Clientele.”
Access to Justice 697

lower social groups toward the law should be conducted, to further corro-
borate this interpretation of the low participation of those groups in
litigation.
Nonetheless, some poor people did find their way to the law courts.
Some of these households may have made use of law courts and disbursed
the requisite report fees and seals, as most lawsuits served primarily to
pressure the defendant into reaching an out-of-court settlement. Often,
fees had to be paid only upon conclusion of the lawsuit; as such, people
who anticipated winning their case would often accept the financial risks
involved, being confident that the opposing party would pay the legal
expenses. Therefore, people who initiated lawsuits did not necessarily
expect to bear the related costs, and this helped significantly to render law-
suits a financially viable option for households of little means. For
example, in 1734, Jan Vermeulen, a poor inhabitant of the Flemish village
Etikhove, sought legal aid at the Saint Yves confraternity, but not until he
had already commenced a lawsuit at the Council of Flanders. He clearly
intended this legal action to function as a forceful threat by which to com-
pel the opposing party to execute a particular mutual contract; Vermeulen
was astonished, however, when his adversary refused to recognize his own
signature on the contract in question, thereby entailing that the lawsuit
would have to be pursued until the matter was fully adjudicated.
57
Some
litigants petitioned for pro deo assistance during the course of a trial,
their poverty having been caused by the many legal costs they had to
bear for the ongoing case.
58
Therefore, the limited extent to which poor households found their way
to law courts (even the inexpensive ones), despite the fact that they could
initiate lawsuits without incurring immediate expenses, goes far in explain-
ing why so few litigants sought free legal aid. However, there are elements
at the supply side of the legal system as well, that help to explain the lim-
ited use poor households made of legal aid. Therefore, the procedure for
obtaining legal aid for the poor is revealing as well, both as concerns
the low numbers of litigants who opted to use it and as concerns the atti-
tudes of local and “national”governments regarding the public accessibil-
ity of their judicial infrastructures.
57. Griet Vermeesch, ‘Een achttiende-eeuws pro deo proces voor de Raad van
Vlaanderen. Een sociaal-historische analyse van rechtspraak in de vroegmoderne Lage
Landen’,inHet gelijk in de Gouden Eeuw. Recht, onrecht en reputatie in de Republiek
(1550–1750), ed. Hans Cools, Michiel van Groesen, and Judith Pollman (Hilversum:
Verloren, 2014), 127–39.
58. ARAB, GR, inv. nr. 552/A, Renvois en justice, 18th century.
Law and History Review, August 2014698

Obtaining Legal Aid
To obtain free legal aid in the eighteenth century, litigants typically had to
first submit a request to the law court where they wished their case to be
heard. These requests were intended to function not as a process for obtain-
ing special favors, but rather as a means to exercise a natural right. Central
government officials in Brussels forwarded petitions for free legal aid to
the appropriate law courts, as petitioners were mistaken in thinking such
authorization was simply an automatic matter of grace: if the request failed
to meet the stipulated criteria, a judge could deny the petitioner all
“benefices”of free legal aid.
59
The natural right of the poor to free legal aid did not imply that such aid
was routinely granted. Several conditions had to be met for a litigant to be
eligible for pro deo consideration. First, the case had to be justified.
Litigants, therefore, sometimes solicited initial assistance from one or
more advocaten, who examined the available evidence and provided an
endorsement for the defensibility of the case. Numerous litigants in eight-
eenth century Antwerp found advocaten prepared to deliver such state-
ments, which they attached to their petitions.
60
Otherwise, the law court
assigned two or even three advocaten to examine the case. The bench of
aldermen in Brussels, for example, followed such a procedure. The alder-
men expected advocaten to be discreet about such statements, and it was
considered highly inappropriate for litigants to be notified of favorable
advice when the aldermen had in fact refused to grant legal aid.
61
In
Leiden, the magistrate also asked one or two advocaten to assess the legiti-
macy of the petitioner’s claim.
62
The second prerequisite for obtaining free legal aid was that the litigant
be “genuinely destitute.”In Brussels and Antwerp, litigants often sub-
mitted a certificate of poverty, granted by a clergyman.
63
Litigants from
Brabantine villages who sought to file pro deo lawsuits at the Council of
Brabant also obtained certificates from local clergymen or from their
59. Ibid.
60. Felixarchief, Privilegekamer, inv. nrs. 787–889, Rekwestboeken, passim. For Brussels:
Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
61. Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
62. RAL, ORA, inv.nr. 146, Rekesten tot het procederen pro deo. Register van dispositiën
op requesten om brieven van voorschrijving tot het verkrijgen van akten van admissie,
1764–1811. The same procedure was followed in Amsterdam: Stadsarchief Amsterdam,
Schout en schepenen, inv. nr. 943, Schepenen minuut register, 1756; and Helmers,
‘Gescheurde bedden,’176.
63. Felixarchief, Privilegekamer, inv. nrs. 787–889, Rekwestboeken, passim; and
Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
Access to Justice 699

local bench of aldermen.
64
However, there were other ways of ascertaining
the poverty of petitioners. In certain cases in Antwerp, a commissioner
from the bench of aldermen was assigned to review the petition and assess
the litigant in person to corroborate that the party was genuinely poor.
65
In
Leiden, the advocaat tasked with checking the justifiability of the peti-
tioner’s claim was also expected to corroborate the petitioner’s adverse cir-
cumstances.
66
A third condition for granting free legal aid was that the
other party involved in the case be heard. This allowed for verifying the
first two conditions, as well as for trying to reconcile the parties, so as
to render the proposed lawsuit unnecessary.
67
Therefore, in Brussels and Antwerp the petitions for free legal aid were
often accompanied with additional certificates verifying the petitioners’
claims. In Leiden, this was generally not the case: the Leiden magistrate
alone checked whether the request met the stipulated conditions. Only
when litigants wished to pursue a lawsuit at a court outside their hometown
or at the Court of Holland would the litigant include a letter of endorsement
(brief van voorschrijvinge) from the local aldermen, in which it was
declared that free legal assistance would have been granted had the case
been tried locally.
68
Who did clergymen and aldermen consider “genuinely destitute,”and
what sort of poverty justified endowment of legal aid? The relatively
small number of requests for pro deo assistance implies that only limited
segments from among the great numbers of poor households found their
way to the law courts as a result of having been granted legal aid. The
rich historiography on poor relief in early modern communities allows
for postulating the social identity of pro deo litigants. After all, assisting
the poor in their legal dealings was, in the Catholic Southern Low
Countries, considered a work of mercy. The invigoration of the Saint
64. Nauwelaers, Histoire des avocats, 336; and Gaillard, Conseil de Brabant, Vol 2, 123.
65. For example, the petition of Guillaume Vanden Houte to the Antwerp aldermen in
1731: Felixarchief, Privilegekamer, inv. nr. 820, Rekwestboek 1731, folio 80v–81r.
66. RAL, ORA, inv. nr. 144E, Registers van dispositiën op requesten, 1659–1810, 1758–
1768; inv.nr. 146, Rekesten tot het procederen pro deo. Register van dispositiën op requesten
om brieven van voorschrijving tot het verkrijgen van akten van admissie, 1764–1811. Such
procedure has also been described for the city of Amsterdam: Stadsarchief Amsterdam,
Archief van de familie van Lennep, inv. nr. 125, Ordonnantie op de maniere van procederen
voor den Gerecht der stad Amsterdam, 1779; and Helmers, Gescheurde bedden, 176.
67. ARAB, GR, inv. nr. 552/A, Renvois en justice, 18th century; Utrechts archief, Hof
van Utrecht (239-1), inv. nr. 342-a-4, Stukken betreffende de kleine rol, 1743–1792.
68. For example: ORA, RAL, inv.nr. 146, Rekesten tot het procederen pro deo. Register
van dispositiën op requesten om brieven van voorschrijving tot het verkrijgen van akten van
admissie, 1764–1811.
Law and History Review, August 2014700

Yves confraternities as part of the Counter-Reformation likewise evidenced
such reasoning.
69
In the early modern period, a moral distinction was made between
so-called “deserving”and “undeserving”poor. The latter comprised a siz-
able group of vagrant and itinerant poor people; these persons were con-
sidered a threat to order and stability and enjoyed few entitlements to
relief. The former—the “respectable,”“deserving,”or “house poor”—
consisted largely of households from the local community; their poverty
was considered to have been caused by misfortunes for which they were
not at fault.
70
The provision of relief to these latter categories of the
poor and its general denial to others constituted an important element of
early modern community building.
71
Charity was, therefore, not necessarily bestowed on the households who
most needed it, nor did subsistence poverty automatically entitle house-
holds or individuals to relief. Sandra Cavallo has developed the clearest
exposition for this, specifically for eighteenth century Turin; however, it
also applies to the Low Countries.
72
Cavallo stressed that it was expected
that poor relief would be directed to “normal”households who had fallen
victim to natural disasters such as illness, death of the head of the family,
or difficulties of a temporary or seasonal nature. As such, relatively affluent
households who suffered sudden disaster enjoyed better prospects for
obtaining relief than did households whose basic socioeconomic structures
(including low household income, for example) rendered it difficult to
make ends meet over extended periods. Such views on charity mirrored
ideological perspectives that evidenced consideration of a rigid social
order. Poor relief, in this respect, was intended to confirm social hierarchies
rather than to remedy social inequalities.
73
Such an outlook is exemplified by the social category of the so-called
“shamefaced poor”in early modern cities. This group encompassed poor
69. De Ridder-Symoens, “The Growth of Civil Society”.
70. Robert Jütte, Poverty and Deviance in Early Modern Europe. New Approaches to
European History (Cambridge: Cambridge University Press, 1994), 158–65.
71. Katherine Lynch, Individuals, Families, and Communities in Europe, 1200–1800: The
Urban Foundations of Western Society (Cambridge: Cambridge University Press, 2003),
103–35.
72. Lis, Social Change, 116–127, 132–133; Ingrid van der Vlis, Leven in armoede.
Delftse bedeelden in de zeventiende eeuw (Amsterdam: Prometheus/Bert Bakker, 2001):
277–9.
73. Sandra Cavallo, “Conceptions of poverty and poor relief in Turin in the second half of
the eighteenth century,”Domestic strategies. Work and family in Italy and France (17th–
18th centuries), ed. Stuart J. Woolf (Cambridge: Cambridge University Press, 1991),
148–99; Sandra Cavallo, Charity and power in early modern Italy. Benefactors and their
motives in Turin, 1541–1789 (Cambridge: Cambridge University Press, 1995), 69–80.
Access to Justice 701

households who had formerly belonged to more affluent middling groups
among the urban citizenry, but who were now, owing to misfortunes such
as disease or the death of a family’s main income earner, unable to finan-
cially maintain their earlier status. The “shamefaced poor”referred to such
people who, being too discomfited and humiliated by their reduced status
to openly approach charity institutions, were allowed to receive alms sur-
reptitiously. Urban authorities thereby protected the secret of these
people’s actual socioeconomic conditions and, therefore, their
reputations.
74
The literature on the so-called personae miserabiles indicates that simi-
lar considerations were fundamental in granting privileges to poor house-
holds for their legal affairs. Richard Helmholz has detailed criteria that
emerged in Canonical Law regarding the poverty suffered by personae
miserabiles: poverty was judged by the party’s current means; assets that
did not yield ready cash were disregarded. For example, a widow who pos-
sessed real estate but had insufficient money to purchase necessities was,
therefore, considered poor. Also, poverty was judged on a sliding scale,
such that even people with considerable assets could be deemed “poor”
if they became unable to live according to their station.
75
Simona Cerutti’sfindings for eighteenth century Turin show that similar
considerations informed early modern practices of poor relief.
76
In Turin,
the category of misérables who were entitled to summary procedure com-
prised a diverse set of people, including widows, orphans, minors, and the
“poor,”as well as merchants, soldiers, pilgrims, and foreigners. These
diverse social groups shared a common characteristic not of material dis-
possession but rather of scarcity of relational and social resources. Such
groups could not be expected to effectively press their cases through
legal claims, especially as their “misery”was primarily related to “incom-
petence”regarding local norms and laws and a lack of relational resources.
A more suitable summary procedure for such litigants was one that leaned
more toward natural law than towards positive law. Also, the “poor”in this
category were not necessarily the community members most deprived of
74. Van der Vlis, Leven in armoede, 277–79; Cavallo, Charity and power, 15, 57, 69,
111–2, 220; Olwen Hufton, The poor in eighteenth-century France (Oxford: Clarendon
Press, 1974), 214–5; Lis, Social Change, 156–7.
75. Helmholz, The Spirit.
76. Thus far, the personae miserabiles have not been described for the Low Countries.
The author is currently preparing an article in which she assesses the social profile of liti-
gants who sought free legal aid in Leiden in the period 1745–1811 via cross-linking the
names of such parties with databases containing demographic, fiscal, and other data. This
research will help to assess what sorts of people belonged to the category of personae mis-
erabiles in eighteenth century Leiden.
Law and History Review, August 2014702

means of subsistence, but rather those who had suffered sudden and unu-
sual deprivation.
77
In all probability, similar ideas about the nature of poverty and the enti-
tlement of the poor to legal aid existed in the Low Countries. This can be
derived from the narratives offered in the consulted petitions for free legal
aid in eighteenth century Leiden and Antwerp and from the source material
examined for Brussels. These sources contain ample and often explicit
explanations of how sudden misfortune had caused the poverty of the peti-
tioners. Strikingly, some of the petitioners’litigation concerned substantial
possessions and assets, testaments to their former wealth.
78
For example, in
Leiden in 1781, a certain Alida van der Linden successfully petitioned for
free legal aid at the bench of aldermen in the matter of a conflict concern-
ing sale of a house she had inherited.
79
These contemporary perspectives on “poverty”should caution legal his-
torians against straightforward assumptions that eligibility for legal aid was
considered a fundamental right of every person. Despite rulers and mon-
archs paying lip service to the importance of justice being accessible to
all subjects, only limited segments of the poor were in fact considered per-
sonae miserabiles. Therefore, from the supply side of legal services, the
most destitute could not necessarily presume reliance on legal aid.
Admittedly, only a limited number of petitions for pro deo assistance
were summarily rejected. Most petitions received provisional approval,
as will be explained in the next section. A number of rejected requests
for pro deo assistance are easily traceable in legal records. The Brussels
archives offer a number of grim examples of the attitude of the local gov-
ernment. In 1758, for example, Lovinus Soffray, a Brussels citizen and
master saddler, sought legal assistance at the Brussels court of aldermen,
in an attempt to overturn a fine of 25 guilders imposed by his guild.
Soffray attached a certificate of poverty from a local clergyman to his peti-
tion, and two advocaten endorsed the justifiability of his case. However,
the city government refused to confer the requested assistance, but did
allow the guild to use its own funds to take legal action against Soffray.
The city government stated that Soffray had evidently trespassed guild
regulations, rendering his defence superfluous. The statements of the
77. Simona Cerutti, “Les ‘misérables’en droit Italien au XVIIIe siècle,”in Gens de pas-
sage en Méditerrannée de l’Antiquité à l’époque moderne. Procédures de contrôle et d’iden-
tification, ed. Claudia Moatti and Wolfgang Kaiser (Paris: Maisonneuve & Laroise, 2007),
228.
78. RAL, ORA, inv. nrs. inv. nr. 144A–144O, Registers van dispositiën of requesten,
1659–1810; Felixarchief, Privilegekamer, inv. nrs. 787–889, Rekwestboeken 1701–1792.
79. RAL, ORA, inv. nrs. inv. nr. 144H, Registers van dispositiën of requesten, 1778–
1786, fol. 59–60.
Access to Justice 703

advocaten were of little significance against the conclusions of the judges.
According to the aldermen, the bestowal of the pro deo implied a provi-
sional verdict. Moreover, the city government “had been informed”that
Soffray was financially competent to assume the costs in question, regard-
less of the certificate of poverty provided to him by a priest. In short, the
authorities argued that they could not allow him to “pressurize”his
opponents “without risk,”that is, without his facing the costs for taking
legal action.
80
Nonetheless, the great majority of the petitions for free legal aid that
were found in the archives of Antwerp and Leiden were provisionally
approved.
81
This tendency has also been more generally established for
petitions filed to urban governments. In all probability, petitions that
were unlikely to be approved were discarded earlier in the petitioning pro-
cess. Petitioners who filed to governmental institutions at local or
“national”levels more often than not employed intermediaries and even
professional lobbyists. Such agents ensured that petitions were drafted cor-
rectly and reached the appropriate desk.
82
Conceivably, such intermedi-
aries were familiar with the relative prospects of the various types of
requests and notified applicants whose requests stood little chance of suc-
cess. As such, it is feasible that the large collection of approved petitions is
somewhat biased. Moreover, it is possible that rejected petitions were cus-
tomarily returned to the petitioner, thereby leaving no traces in the archives.
Therefore, the provisional approval of most petitions for pro deo assistance
does not exclude the possibility that legal aid was restricted to particular
subsections among the poor, notably the so-called “deserving poor.”
83
Benefits and Hazards of Legal Aid to the Poor
Obtaining the right to litigate pro deo could serve as a highly effective
means by which poor litigants could try to persuade alleged offenders to
address the contention in question, before the incident was heard in
80. Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
81. Felixarchief, Privilegekamer, inv. nrs. 787–889, Rekwestboeken; RAL, ORA, inv. nr.
144A-O, Dispositiën op rekwesten, 1659–1811.
82. Griet Vermeesch, “Professional Lobbying in Eighteenth-Century Brussels: The Role
of Agents in Petitioning the Central Government Institutions in the Habsburg
Netherlands,”Journal of Early Modern History 16 (2012): 95–119; Johanna Roelevink,
“‘t Welck doende etcetera.’Lobby bij de Staten-Generaal in de vroege zeventiende
eeuw,”Jaarboek Geschiedkundige Vereniging ‘De Haghe’(1990): 153–67.
83. In-depth analysis of a limited number of case studies of the social position of pro deo
litigants in the local community will help to test this scenario.
Law and History Review, August 2014704

court, and even to temporarily remedy their own precarious personal cir-
cumstances. A case at the Court of Utrecht in 1767 provides a clear
example of the potential benefit of obtaining free legal aid. Anthonia
van de Linden had pursued legal recourse at the Court of Utrecht after hav-
ing failed to peaceably retrieve a sum of 30 guilders she had advanced to
her father and stepmother. Her stepmother was summoned to face the com-
plaints, but refused to yield or acknowledge any wrongdoing. However,
when Van de Linden subsequently obtained the right to wage a lawsuit
pro deo, her stepmother returned the loan forthwith.
84
Households made
use of the pro deo procedure to obtain overdue wages, and young impecu-
nious women applied it as a means to forcefully hold fathers of illegitimate
children to their responsibilities. Some litigants took pro deo legal action as
part of attempts to claim (often substantial) inheritances, which offered
potential means to escape from poverty.
Litigants who undertook formal legal actions faced a broad range of
attendant costs. In the eighteenth century, all court documents were
required to bear a seal that cost a few pennies. Furthermore, fees were to
be paid to various officials, including messengers and clerks, whose
incomes depended largely upon receipt of such payments. The parties
also financially compensated witnesses who testified during the lawsuit.
There were also fees for procureurs and advocaten; their charges could
include various services, such as writing and submitting court documents,
or attending court sessions. Therefore, in theory, litigants who obtained
free legal aid could wage their lawsuit free of charge, such that payments
for the services of procureurs and advocaten and for seals and various
remunerations to court officers were exonerated.
85
However, pro deo assistance did not automatically waive all litigation-
related costs. For example, litigants at the Council of Flanders who
obtained pro deo assistance enjoyed exemption only from having to pay
for seals affixed to documents. If such litigants wished to have free assist-
ance from a procureur and advocaat, they needed to address the Ghent
confraternity of Saint Yves. It took the aforementioned Jan Vermeulen a
full year before he was able to obtain the latter kind of aid, although the
Council of Flanders had granted him exoneration from the cost of seals
84. Utrechts archief, Hof van Utrecht, inv. nr. 342-a-4, Stukken betreffende de kleine rol.
85. Rijksarchief Gent, Raad van Vlaanderen, inv. nr. 7995, Staten van gerechtskosten “Pro
deo et Sancto Ivone,”1744–1761; and Gaillard, Conseil de Brabant, Vol 2, 123. The costs
for the urban courts in Antwerp are mentioned in the local customs: Ordonnantie ende
Verhael vanden Stijl ende Maniere van Procederen voorAmptman, Borghemeester ende
Schepenen der Stadt van Antwerpen, https://www.kuleuven-kulak.be/facult/rechten/
Monballyu/Rechtlagelanden/Brabantsrecht/antwerpen/style.html.(accessed 8 June 2014).
On the cost of litigation at the Leiden bench of aldermen, see, Van Meeteren, Op hoop, 280.
Access to Justice 705

from the start.
86
The urban benches in Brussels, Antwerp, and Leiden
offered pro deo litigants exemption from report fees (or at least the pay-
ment of seals) and from the services of legal spokespersons.
87
However, there are many indications that costs were nonetheless
charged. The documents examined for eighteenth century Brussels con-
tained several examples. In 1770, Barthelemi Hartogh obtained legal aid
for a testamentary cause, yet subsequently learned, to his chagrin, that
he would have to pay report fees before he could obtain the verdict. Not
surprisingly, he was unable to pay these fees, not least considering that
he already had to beg for bread to feed his seven children. Stephanus
Bianchini and Claudine Hughs faced a similarly precarious financial situ-
ation in 1771 when they petitioned the central government to order the
Brussels bench of aldermen to acquit them of these costs. The latter
body objected to the claim that this procedure had been followed “within
living memory.”
88
Other examples relate to the High Court of Utrecht and the Court of
Flanders. Litigants for small claims who reached a favorable agreement
at the High Court of Utrecht saw part of their awarded sums applied to pro-
cedural costs, even when they had applied for pro deo assistance. In 1767,
the former employer of the farmhand Jan Putters agreed, in the presence of
a judge, to pay Putters 7 guilders of 11 guilders in outstanding wages.
However, Putters had to immediately pay 1.6 guilders of the awarded
sum to the procureur who had helped him at court.
89
This was hardly a
substantial amount of money, although for Putters—who had thought it
worthwhile to pursue legal action for a claim of 11 guilders—it was a sig-
nificant price to pay for remuneration of his income.
Pro deo litigants at the Council of Flanders also faced numerous
expenses, even after exoneration of the costs of seals and legal representa-
tives. In 1733, the Ghent Saint Yves Confraternity petitioned the central
government to order the Council of Flanders not to charge the usual
array of report fees to litigants who had obtained the pro deo procedure.
A decree to this end was published in 1733.
90
However, the list of expenses
86. Rijksarchief Gent, Raad van Vlaanderen, inv. nr. 21.077, Jan Vermeulen (Etikhove),
hr. bev., c. François Devos (Munkzwalm): terugbetaling van geleend geld, 1737–1738.
87. As summarized in an Extrait du Protocole of the Privy Council in Brussels dated
August 22, 1778. For Leiden, the acquittal of the costs of seals and the payment of legal
spokesmen could be derived from the apostilles on consulted petitions.
88. Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
89. Utrechts archief, Hof van Utrecht, inv. nr. 342-a-4, Stukken betreffende de kleine rol,
1743–1792.
90. “Décret de Charles VI ordonnant à tous magistrats, collèges de justice, secrétaires, gre-
ffiers, huissiers, d’expédier gratis les actes requis pour les procès des personnes misérables
Law and History Review, August 2014706

for at least one pro deo lawsuit waged at the Council of Flanders between
1733 and 1741 shows that the officials of the Council nonetheless received
all due payments.
91
In 1791, three defendants who had obtained free legal
aid at the Council of Flanders (so as to contest criminal charges against
them) were subsequently required to pay 12 guilders in so-called “report
fees”and remuneration to the three advocaten who had declared their
case admissible.
92
Pro deo litigants also risked incurring even further liabilities. Such
assistance was always and explicitly granted provisionally; however, as
noted, an important condition in obtaining such aid was that the case
was in fact warranted. If, in the course of the lawsuit’s proceedings, the
position of the opposing party gained conclusive leverage, the pro deo sup-
port could be re-evaluated or withdrawn. Such a situation faced a German
pro deo litigant who, in 1761, had waged a lawsuit at the Council of
Brabant to obtain payment for provisions delivered to the French army.
93
Likewise, a pro deo party who was ruled against could be held accountable
for legal costs. For example, in 1758, Johanna Latterman was allowed to
pursue charges pro deo at the Amsterdam bench of aldermen against
another party for alleged “defloration”; the defendant, however, swore
that he had never had sexual relations with her, and she was subsequently
required to pay the case’s legal fees.
94
In the Southern Netherlands, eighteenth century officials of the Privy
Council distinguished between the pro deo procedure and the right to
take legal action sous notice.Inpro deo procedures all costs were (in the-
ory, at least) acquitted; in sous notice cases, however, careful note was
taken of any suspended report fees and unsettled remuneration to advoca-
ten and procureurs. The losing party was required to pay all such costs,
even if the litigant had obtained the right to wage the lawsuit sous notice,
because losing such a case indicated that the conditions of the claim being
valid and justified had not actually been satisfied. Similary, the right to the
sous notice could be withdrawn during the proceedings (before the verdict)
if the position of the opponent appeared to become irrefutable.
95
faisant partie de la clientèle de la confrérie de Saint-Ivon, à Gand, 28 novembre 1733,”in
Recueil des ordonnances des Pays-Bas Autrichiens, troisième série –1700–1794, ed.
Louis-Prosper Gachard (Brussels: Fr. Gobbaerts, 1877), 528–29.
91. “Costen omme Jan Vermeulen”; inv. nr. 21.077, Jan Vermeulen (Etikhove), hr. bev., c.
François Devos (Munkzwalm): terugbetaling van geleend geld, 1737–1738.
92. ARAB, GR, inv. nr. 552/A, Renvois en justice, 18th century.
93. ARAB, GR, inv. nr. 552/B, Renvois en justice, 18th century.
94. Stadsarchief Amsterdam, Schout en schepenen, inv. nr. 943, Schepenen minuut reg-
ister, januari 1756–juli 1756, folio 194–195.
95. ARAB, GR, inv. nr. 552/B, Renvois en justice, 18th century.
Access to Justice 707

The widow Dolvis of Brussels was confronted with such situation in
1749. Poverty had compelled her to cancel a rental agreement with a cer-
tain Le Francq, another widow, who consequently undertook legal action
for unlawful breach of contract and rent arrears. In the ensuing lawsuit,
Dolvis first obtained the right to defend herself sous notice, but this
right was withdrawn a few months later, and she was required to pay a cau-
tion of 30 Ecu. Unable to provide such a sum and having nobody to stand
surety for her, Dolvis used her few possessions as surety.
96
In 1757,
Philippe Devuyst, another citizen of Brussels, unlawfully left his wife
but obtained the right to defend himself sous notice in the ensuing court
proceedings. However, after a commissioner of the city government
heard testimony from Devuyst’s neighbours and close friends, the per-
mission was withdrawn, on grounds that his petition to the city government
had presented a clearly “fantasized”version of the conflict.
97
Although Brussels officials at local and central levels stressed the dis-
tinction between pro deo and sous notice, the evidence suggests that out-
side Brussels the appellations were fairly synonymous, with the pro deo
being as provisional and conditional as the sous notice. A closer look at
the examined ninety-seven petitions for legal aid in eighteenth century
Antwerp reveals that the litigants always applied for pro deo assistance,
and typically received the explicitly provisional right to litigate pro deo
ou sous notice until the opposing party had submitted a “rescription,”an
official response to the petitioner’s grievance.
98
In the legal records of
Amsterdam, Leiden, the Court of Holland, and the court of Utrecht, only
the term pro deo is included; however, it appears to have stipulated the
same conditions as did sous notice. However, in Brussels, there were
instances of litigants petitioning for the right to wage a lawsuit pro deo
or at least sous notice;
99
as such, the distinction appears to have remained
in force there.
The provisional nature of the dispensation to pursue litigation at no
financial cost may have been an important reason why poor households
were reluctant to seek pro deo assistance. That the assistance could be
withdrawn in the course of the lawsuit evidently represented a significant
risk. Moreover, even if their case was deemed to be justified, such litigants
could still lose the suit for procedural reasons. In 1736, Cathérine Melaen
waged a pro deo lawsuit at the Council of Brabant against a former debtor
of her deceased father, seeking to obtain a sum of no less than 20,000
96. Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
97. Ibid.
98. Felixarchief, Privilegekamer, inv. nrs. 787–889, Rekwestboeken, 18th century.
99. Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
Law and History Review, August 2014708

guilders. In endeavoring to convince the judge of the lawfulness of her
claim, she provided sworn testimonies from a range of people knowledge-
able about the case. However, civil procedure at the Council of Brabant
determined that such proof was not authorized for such a large claim.
Melaen lost her case and the judge was left to decide which party would
pay the incurred legal costs of more than 600 guilders. Fortunately for
Melaen, the judge considered her case justified and, to the shock of the
opposing party, consigned all the case’s legal expenses to him.
100
She
was fortunate in this respect, as a less lenient judge would have saddled
her with the costs, regardless of her financial circumstances.
However, other evidence suggests that such leniency for pro deo liti-
gants was generally quite limited. Notwithstanding the myriad opinions
voiced in favour of the poor not being excluded from obtaining their
“good right”in the law courts, contemporary officials and observers exhib-
ited little tolerance for those who opted to pursue such rights. In the early
modern period, there was fairly widespread intolerance for people who, in
excessively exploiting their access to the law courts, supposedly instigated
conflicts and deliberately threatened the peace and harmony of the commu-
nity. However, such prejudices did not impede massive reliance on law
courts on the part of people from all walks of life, especially during the
long sixteenth century.
101
Poor people who used law courts to settle their conflicts were common
targets of these prejudices and, therefore, were more likely to suffer the dis-
advantageous effects of such intolerance. Joos De Damhouder’s famous
late sixteenth century work on civil procedure includes passages character-
izing the poor as more “fervent to plead”than the rich.
102
Commenting on
the 1604 Ordinance on civil procedure in the Catholic Netherlands, the pre-
viously mentioned observer de Wynants stated that poor litigants were gen-
erally “troublesome, wicked folks and pleaders of bad faith. (...) They
often start lawsuits to subject their opponent to their claims, they often
act out of vengeance and they seek to impose excessive costs on their
adversary that cannot be recuperated after they lose their trial, in view of
their state of poverty.”
103
These observations about how law courts were allegedly misused by the
poor are echoed in the occasional writings of various officials who were
regularly confronted with poverty-stricken litigants. In 1765, the Brussels
100. Nauwelaers, Histoire des avocats, 339.
101. This has been described for England in Christopher W. Brooks, Pettyfoggers and
Vipers of the Commonwealth. The “Lower Branch”of the Legal Profession in Early
Modern England (Cambridge: Cambridge University Press, 1986) 108–11.
102. Cited in Gaillard, Le Conseil de Brabant, Vol 2, 122.
103. Cited in Gaillard, Le Conseil de Brabant, Vol 2, 123.
Access to Justice 709

city government claimed that the majority of litigants were people who
faced financial hardship in taking legal action; the city government
insisted, however, that such hardship was not a valid reason for randomly
allowing individuals the right to wage lawsuits free of charge, not least as
these proceedings imposed great strains on the opposing parties. According
to the city government, only litigants who were absolutely unable to
shoulder the costs of a lawsuit should be granted this right. In the view
of the Brussels aldermen, haphazardly or otherwise inefficiently conferring
pro deo counseling on those who requested it would soon lead to respect-
able people being daily disturbed in matters regarding their possessions
and peace of mind; such harassment would be undertaken by pro deo liti-
gants, who would quickly grow in number because of the impunity regard-
ing the costs of waging lawsuits. The Brussels aldermen deemed it
essential to be highly skeptical of the “false pretences”often maintained
by poor litigants petitioning for legal aid.
104
Pro deo litigants were especially disadvantaged in seeking to repeal
unfavorable sentences, particularly in Brabant, even despite the fact that
plaintiffs eligible for free legal aid were entitled to be heard in first instance
at courts of appeal. For example, the customary law of the Bailiwick of
Bois-Le-Duc upheld the privilege of widows, orphans and other personae
miserabiles to bring their cases to the court of aldermen of Bois-le-Duc.
Similar privileges were granted at High Courts.
105
However, using High
Courts as courts of appeal was difficult for poor litigants, as legal aid
was rarely granted for appeals. De Wynants, observing the workings of
the Council of Brabant in the early seventeenth century, opined that
those who could not cover the costs of an appeal should content themselves
with having lost their case only once and with having forced the other party
to pay useless expenses for a vexatious lawsuit.
106
This stance reiterates the
view that obtaining pro deo legal aid implied a provisionally favourable
judgment, which could hardly be maintained for cases that were lost in
first instance.
However, even litigants who won their pro deo case in the first instance
but had to defend it further at a court of appeal also experienced difficulties
in obtaining legal aid for the subsequent proceedings. In 1753, widower
Christophorus Philippi won a pro deo case at the bench of aldermen of
Ruisbroek, a small village in the vicinity of Brussels. The case related to
104. Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
105. Ariadne Schmidt, Overleven na de dood. Weduwen in Leiden in de Gouden Eeuw
(Amsterdam: Prometheus/Bert Bakker, 2001), 179; Kagan, Lawsuits and Litigants, 103;
Gaillard, Conseil de Brabant, Vol. 2, 31, 33–34; and Lijten, Het burgerlijk proces, 46.
106. Gaillard, Conseil de Brabant, Vol 2, 123–24.
Law and History Review, August 2014710

taxes on a piece of land claimed by a local lord, who subsequently
appealed the ruling to the bench of aldermen in Brussels. The Brussels
aldermen refused to grant Philippi legal aid for the appeal, as he did not
meet the condition of poverty. He possessed land, and litigants had to
pay legal costs if they held possessions that could be used for that purpose.
The aldermen, although they acknowledged that Philippi’s land yielded
minimal produce and that it “could seem odd that the supplicant should
lose the property the lawsuit was waged for, only to be able to cover
legal costs,”nonetheless insisted that he pay his part of the report fees,
amounting to 560 guilders. This ruling surprised Philippi, especially as
he had received pro deo assistance at the Ruisbroek bench of aldermen.
107
Litigants who appealed to the High Court of Holland likewise assumed
that being granted pro deo assistance at a lower court was assurance of
receiving such legal aid at the court of appeal. In contrast to the previously
noted cases from Brabant, in Holland such expectations were usually sat-
isfied. Johanna Latterman, after losing a case at the bench of aldermen in
Amsterdam, appealed to the Court of Holland by using pro deo assist-
ance.
108
In 1756, Lijntje Wavers appealed a case (against the alleged father
of her illegitimate child) that had been decided against her at the bench of
aldermen of Schiedam. She attached the “act of authorization”for free
legal aid in Schiedam with her request to the Court of Holland, which sub-
sequently granted her request for legal aid.
109
Although legal aid to the poor bore many similarities in courts of various
institutional levels across the Low Countries, the degree of leniency regard-
ing poor litigants varied. Whereas the court of aldermen of Ruisbroek
found no objection to providing Christophorus Philippi with legal aid,
despite his holding land, the Brussels bench of aldermen judged his situ-
ation differently. According to de Wynants, the Council of Brabant refused
to consider requests for pro deo assistance for ongoing lawsuits, so as not
to undermine the legal position of the opposing party.
110
However, the
Antwerp bench of aldermen saw no harm in such a course of action. In
June 1731, it granted the miller Gerard van Lathem pro deo assistance
after a year of unending legal disputes with the Millers guild.
111
Also,
the Brussels city government considered provision of pro deo assistance
to be a provisional judgement in favor of the pro deo litigant. In
Antwerp and Leiden, however, there are numerous instances of both parties
107. Stadsarchief Brussel, Oud archief, Liasse 606, Procédure, 1699–1794.
108. Nationaal archief, Hof van Holland, inv. nr. 3140, Rekwesten om mandement.
109. Ibid.
110. Gaillard, Conseil de Brabant, Vol 2, 124.
111. Felixarchief, Privilegekamer, inv. nr. 820, Rekwestboeken, folios 92–93.
Access to Justice 711

receiving pro deo assistance, which evidenced a different interpretation.
112
Litigants who had successfully requested pro deo assistance from lower
courts were understandably surprised when they were subsequently held
responsible for payment of report fees at the bench of aldermen in
Brussels. Elsewhere, such fees were not charged to pro deo parties.
These variations are indicative of how the pro deo procedure evolved in
practice and that, at least until the eighteenth century, it was scarcely sub-
ject to formal regulation. Customary law rarely addressed the accessibility
and viability of local law courts to poor people.
113
The extensive ordi-
nances promulgated in 1531, 1558, and 1604 regarding civil procedure
contained only the previously described vague stipulation that advocaten,
procureurs, and officials of the law courts were to serve the poor for free.
There were occasional stipulations regarding court accessibility for the
poor, but no bylaw was ever published in the Southern Low Countries
or in the Dutch Republic that stipulated precisely what the pro deo pro-
cedure comprised. Revealingly, the decree promulgated in 1733 at the
request of the Ghent Saint Yves confraternity addressed only pro deo
assistance to clients of that particular confraternity.
114
Otherwise, the grant-
ing of pro deo assistance was left to the discretion of judges.
There is evidence, however, that regulations for the pro deo procedure
emerged during the eighteenth century. In February 1703, for example,
the city government of Antwerp submitted a letter to the Council of
Brabant, querying whether poor people who availed themselves of pro
deo entitlements were obliged to pay for the newly introduced “small
seal”for official documents. After seeking the opinion of the States of
Brabant, the Council of Brabant allowed for poor litigants to be exempted
from such taxes, and seized the opportunity to establish rules regarding the
pro deo procedure, so as to prevent abuse of it. Henceforth litigants could
receive pro deo assistance at Brabantine courts only after having filed a
petition with a certificate of poverty and after one or more advocaten
had confirmed the justifiability of the case; only then would written
approval be granted for taking pro deo legal action. A letter announcing
112. Felixarchief, Vierschaar, inv. nr. 1561, Furnissementboecken, 1685–1728; and
Regionaal archief Leiden, Oud Rechterlijk Archief, inv. nr. 44 W, Dingboeken van grote
zaken, sept. 1755-oktober 1766.
113. A search of the terms poor,widows,orphans,miserabiles, and gratis in the available
online customary law of Aarschot, Asse (1569), Diest (1696–1701), Baronie Grimbergen
(1606), Leuven (1622), Brussels (1570 and 1606), and Eeklo, yielded few stipulations.
https://www.kuleuven-kulak.be/facult/rechten/Monballyu/Rechtlagelanden/Bronnenindex.
htm (February 26, 2012).
114. “Décret de Charles VI”.
Law and History Review, August 2014712

these rules was sent to the authorities of local courts in Brabant.
115
This
memorandum, prompted by a new administrative tax, was, for Brabant at
least, the first formal and general directive regarding the pro deo procedure.
Although similar provincial stipulations have not been found regarding
legal aid for the poor in the Dutch Republic, it appears that increased for-
malization of the procedure occurred there as well. For example, in 1779
and 1785, two Amsterdam regents described in great detail the myriad
specifics for how litigants obtained pro deo assistance at the bench of
aldermen in Amsterdam.
116
Also, the sizable collection of petitions sub-
mitted to the Leiden bench of aldermen ranges from the years 1659 to
1811. Beginning with the submissions from 1751, the collection systema-
tically contains formal petitions for obtaining access to pro deo assistance.
This is a strong indication that increased formalization emerged from the
mid-eighteenth century onward. Granting of the pro deo procedure had
probably been done more informally before 1750. This development cor-
responds to a wider progression of increased formalization in the process
of petitioning during the early modern era.
117
Formalization did not dimin-
ish the barriers for the poor to draw on legal aid. Granting the right to liti-
gate pro deo still was at the discretion of the individual law courts and
judges, who largely used their own interpretation of the criteria.
Conclusions
Whereas early modern rulers ostensibly expected their judicial officials to
serve the poor in the same way that they served the rich, those rulers
exerted little effort to guarantee the accessibility of their law courts.
Analysis of legal aid for the poor in the early modern Low Countries indi-
cates that accessibility to law courts was restricted for poor households,
although there are many examples of poor, often illiterate litigants who
successfully navigated their way through the law courts so as to settle dis-
putes and make claims. However, the numbers of pro deo cases heard at a
range of law courts in the Low Countries were low, particularly in relation
to the local demographic weights of the poor.
This article has argued that early modern rulers and their law courts only
targeted limited sections of the “the poor”to be eligible for legal aid. The
115. Rijksarchief in Anderlecht, Raad van Brabant, Archief van de Griffies, inv. nr. 5222,
Consulten, 1702–1705, folio 90–91; and Gaillard, Conseil de Brabant, Vol 2, 123.
116. Stadsarchief Amsterdam, Archief van de familie van Lennep, inv. nr. 125,
Ordonnantie op de maniere van procederen voor den Gerecht der stad Amsterdam, 1779;
and Helmers, Gescheurde bedden, 176.
117. Roelevink, “‘t Welck doende,”163.
Access to Justice 713

“deserving poor”were common candidates for legal aid, unlike the itiner-
ant poor, although the latter faced the greatest hardships. The petitions for
free legal aid consulted for this article reveal that pro deo litigants often
pertained to households who had previously enjoyed secure financial status
but had become impoverished as a result of sudden misfortune. This indi-
cates that rulers, their courts, and court officials granted legal aid first and
foremost to limited sections of impoverished households in the community,
so as to confirm social hierarchies and reinforce the division between who
was included in the community and who was not. Granting legal aid to the
poor was, therefore, not aimed at lowering the entrance bar of the judicial
infrastructure for the poor, or at helping the poor to use judicial infrastruc-
ture to improve their circumstances. However, as with other forms of poor
relief to the deserving poor, it was a major factor in practices of community
building.
Although the policies of law courts were intended to grant legal aid to
the poor only to limited extents, there appeared to be relatively little
demand for such assistance. This article has argued for further research
into the likely existence of a sociocultural gap between the large social seg-
ments of poor households, on one hand, and the elites and higher middling
groups, who dominated the law courts, on the other hand. However, the
limited use of the pro deo procedure can also be attributed to its character-
istics. Availing oneself of the procedure posed risks, especially financial
ones, because it was always granted provisionally. Legal aid could be with-
drawn, even before a verdict had been rendered, if a pro deo litigant’s case
began to appear less justified than first assumed. Moreover, litigants who
were entitled to pro deo assistance could still find themselves facing unex-
pected costs. The fact that relatively few people pursued the pro deo option
was, perhaps, self-reinforcing. The fact that most poor people had few, if
any, peers who had opted to turn to the courts heightened the threshold
against their resorting to legal actions.
The examination of law courts in three cities, extended with research
into a selection of additional law courts at urban and regional levels, has
illustrated variations in the nature of the pro deo procedure across the
Low Countries. This nonuniformity stemmed primarily from the fact that
only the judges of the relevant law courts were considered qualified to
assess whether litigants were eligible for free legal aid, such that central
regulations regarding legal aid for the poor were hardly promulgated.
There is one striking difference in how legal aid was provided in the
Dutch Republic versus in the Habsburg Low Countries, notably that pro
deo litigants in the north faced fewer difficulties in obtaining further
legal aid to proceed with appeals. Otherwise, legal aid to the poor was
as provisional, and therefore as risky, as in the south.
Law and History Review, August 2014714