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An Aging Court in a Changing World? The Great Council of Malines in the Eighteenth Century.
Until now, historical research on the Great Council has been focused onthe late 15th and early 16th centuries, corresponding to the origins and the first few decades of the courts existence. The historiography on the Great Council is no exception: the early years of other Ancien Régime institutions typically also received much more attention than the later period of their existence and their ultimate disappearance. We can identify two main factors that explain this observation. Firstly, historians apparently assume that an institution in the years leading up to its disappearance and abolition must necessarily have been in decay. Althoughespecially the 18th century is regarded as a period of change and innovation due to the advent of Enlightenment and its new ideas, institutions are generally presumed to have remained stagnant since their establishment 300 years before, leading to an expectation that they are poorly adjusted to the late Ancien Régime society. Secondly, institutions in theNetherlands are often examined as instruments of the centralization policies of the Burgundy Dukes and their Habsburg successors. This, of course, also results in a particular focus on the 15th and 16th centuries.
Nevertheless, new attempts at state-building were made by the Austrian Habsburgs in the 18th century. And while these evolutions are well-known, the role played by the existing institutions in this renewed process of state-formation is yet to be examined. Our dissertation contributes to the existing historiography in two regards. First, we studied the Great Council as an institution, analyzing its personnel policy, its internal organization, its position within the broader society of the Austrian Netherlands, the volume and nature of litigation at the tribunal and its final years and disappearance in the late 18th and early 19th century. Secondly, by means of this institutional study, we examined the role played by the Great Council in the process of state-building in the 18th century.
The institutional study of the 18th century Great Council demonstrated that the court was in general characterized by continuity, at least in those areas on which the court itself or the central government could exert any influence. Indeed it seems that, ever since the 16th century, the Council had merely been going with the flow, impervious to most of the change the world around it was experiencing. Ina sense, this continuity created stability, which was exactly what the Austrian Habsburgs, with the exception of Joseph II, were striving for in their Netherlands possessions.
In the personnel policy of the GreatCouncil, this continuity manifested itself in an intergenerational approach towards the selection of new councilors. Given the significance of family networks and relations of affinity as sources of support for a strong, centralized state, it is no wonder that these two elements constituted the main recruitment criteria for personnel at the court. The droit de terne in particular was an ideal instrument to create continuityin the personnel policy of the Great Council. In addition to nurturing the right network, a prospective councilor needed to be born in the Austrian Netherlands, have a legal education and a certain level of experience. However, in practice, none of these conditions were rigorously followed.
Continuity also marked the internal organization and inner workings of the court. The last-encompassing Procedure Ordinance dated from 1559. While individual decrees were directed at remedying certainpressing problems and other issues were solved almost organically, the central government never made a profound attempt to adapt the court tothe changed circumstances of the 18th century. This ambivalent attitudeof the central government was even more evident in the conflicts the Great Council had with other institutions in the Austrian Netherlands, such as the Privy Council, the Provincial Councils and the Magistrate of Malines: at times it supported the Great Council in its bid for power, at other times it firmly ruled against the Councils claims at superiority.This probably semi-conscious divide and rule strategy avoided that the Great Council or any other institution was able to accrue too much power. At the same time, the governments Janus-faced attitude towards the Great Council caused the councilors to suffer from some sort of collective status anxiety. Their desire to vigorously defend their court against real or perceived attacks certainly indicates that they were worried about the position and status the Great Council could still claim in the 18th century.
An important aspect of their fears must have been the consistent decline in the number of lawsuits, not onlybecause it affected their income, but also because it could raise questions about the courts overall purpose and relevance. Indeed, as far as litigation was concerned, there was no continuity at the Great Council. Unsurprisingly, this was one of the few aspects that neither the Great Council itself nor the central government could really influence. Except for those lawsuits that were instigated by the office-fiscal, it was theparties who decided if they would take their disputes to court or rather find an alternative solution to their differences. Explaining this great litigation decline, in so far as possible, should therefore focus on the potential litigants and their socio-economic profile as well as onany external reasons that could have deterred them from litigating at the Great Council.
Notwithstanding the decline in litigation and regardless of the reforms introduced by Joseph II and the reaction against them, the late 18th century Great Council was still to a large extent characterized by continuity. Certainly, the central government did make increased use of the tribunal in the times of crisis of the late 1780s andearly 1790s, but once the immediate danger had passed and the government adopted a policy of amnesty and reconciliation, it degraded the Great Council once again to a secondary role. Therefore, the position held bythe late 18th century Great Council was despite the turbulent external circumstances in many ways similar to what it had been in the earlier decades.
The unwillingness of the Austrian Habsburgs to implement thereforms necessary to adapt the Great Council to the changed circumstances of the 18th century as well as their ambiguous attitude towards the court suggest that they no longer considered the Great Council as the prime instrument it had once been to provide a check on the Provincial Councils or the local authorities. In addition, the decline in litigation atthe Council diminished its ability to work as a tool of centralization and unification. While the Great Council might have been an excellent instrument of state-building in the 15th and 16th centuries, it was no longer actively promoted by the monarchs of the 18th century to play that role.
Failing to reinforce the Great Council certainly could have been a deliberate strategy as part of the Austrian Habsburgs attempts at least until Maria Theresa not to upset the delicate balance of the composite state. A strong Great Council was bound to hurt the particularistic feelings of the provinces at some point, something which was especially avoided in the period of the Theresian Compromise. As is well-known, Joseph II broke with this tradition, but he was equally unwilling to use the Great Council as an instrument of state-formation, albeit fordifferent reasons. In the Emperors worldview, the Great Council as court par excellence for the privileged must have been something of an anomaly, an outdated remainder of the old order. When he rearranged the entire judicial organization of the Netherlands, there could be no doubtin his mind that the court needed to be abolished.
Obviously, the Great Council never really protested this course of events. As the Sovereigns Council by excellence, it could do nothing but obey the sovereign, even if it meant that the Great Council and its members would be demoted to a position of secondary importance. Only in times of crisis did the Austrian Habsburgs again rely on the tribunal. Yet, once peace had been more or less restored, they degraded it back to a second-rate role. Asa result, the Great Council never held (or took) its fate in its own hands, and merely underwent the events of the 18th century.
The Great Council however, was certainly no exception. The Parlement de Paris in France and the Reichskammergericht in the German Empire suffered in varying degrees the same fate. While they once might have been agencies ofchange, it could be argued that these three superior courts no longer had much agency at all in the 18th century.
Nevertheless, new attempts at state-building were made by the Austrian Habsburgs in the 18th century. And while these evolutions are well-known, the role played by the existing institutions in this renewed process of state-formation is yet to be examined. Our dissertation contributes to the existing historiography in two regards. First, we studied the Great Council as an institution, analyzing its personnel policy, its internal organization, its position within the broader society of the Austrian Netherlands, the volume and nature of litigation at the tribunal and its final years and disappearance in the late 18th and early 19th century. Secondly, by means of this institutional study, we examined the role played by the Great Council in the process of state-building in the 18th century.
The institutional study of the 18th century Great Council demonstrated that the court was in general characterized by continuity, at least in those areas on which the court itself or the central government could exert any influence. Indeed it seems that, ever since the 16th century, the Council had merely been going with the flow, impervious to most of the change the world around it was experiencing. Ina sense, this continuity created stability, which was exactly what the Austrian Habsburgs, with the exception of Joseph II, were striving for in their Netherlands possessions.
In the personnel policy of the GreatCouncil, this continuity manifested itself in an intergenerational approach towards the selection of new councilors. Given the significance of family networks and relations of affinity as sources of support for a strong, centralized state, it is no wonder that these two elements constituted the main recruitment criteria for personnel at the court. The droit de terne in particular was an ideal instrument to create continuityin the personnel policy of the Great Council. In addition to nurturing the right network, a prospective councilor needed to be born in the Austrian Netherlands, have a legal education and a certain level of experience. However, in practice, none of these conditions were rigorously followed.
Continuity also marked the internal organization and inner workings of the court. The last-encompassing Procedure Ordinance dated from 1559. While individual decrees were directed at remedying certainpressing problems and other issues were solved almost organically, the central government never made a profound attempt to adapt the court tothe changed circumstances of the 18th century. This ambivalent attitudeof the central government was even more evident in the conflicts the Great Council had with other institutions in the Austrian Netherlands, such as the Privy Council, the Provincial Councils and the Magistrate of Malines: at times it supported the Great Council in its bid for power, at other times it firmly ruled against the Councils claims at superiority.This probably semi-conscious divide and rule strategy avoided that the Great Council or any other institution was able to accrue too much power. At the same time, the governments Janus-faced attitude towards the Great Council caused the councilors to suffer from some sort of collective status anxiety. Their desire to vigorously defend their court against real or perceived attacks certainly indicates that they were worried about the position and status the Great Council could still claim in the 18th century.
An important aspect of their fears must have been the consistent decline in the number of lawsuits, not onlybecause it affected their income, but also because it could raise questions about the courts overall purpose and relevance. Indeed, as far as litigation was concerned, there was no continuity at the Great Council. Unsurprisingly, this was one of the few aspects that neither the Great Council itself nor the central government could really influence. Except for those lawsuits that were instigated by the office-fiscal, it was theparties who decided if they would take their disputes to court or rather find an alternative solution to their differences. Explaining this great litigation decline, in so far as possible, should therefore focus on the potential litigants and their socio-economic profile as well as onany external reasons that could have deterred them from litigating at the Great Council.
Notwithstanding the decline in litigation and regardless of the reforms introduced by Joseph II and the reaction against them, the late 18th century Great Council was still to a large extent characterized by continuity. Certainly, the central government did make increased use of the tribunal in the times of crisis of the late 1780s andearly 1790s, but once the immediate danger had passed and the government adopted a policy of amnesty and reconciliation, it degraded the Great Council once again to a secondary role. Therefore, the position held bythe late 18th century Great Council was despite the turbulent external circumstances in many ways similar to what it had been in the earlier decades.
The unwillingness of the Austrian Habsburgs to implement thereforms necessary to adapt the Great Council to the changed circumstances of the 18th century as well as their ambiguous attitude towards the court suggest that they no longer considered the Great Council as the prime instrument it had once been to provide a check on the Provincial Councils or the local authorities. In addition, the decline in litigation atthe Council diminished its ability to work as a tool of centralization and unification. While the Great Council might have been an excellent instrument of state-building in the 15th and 16th centuries, it was no longer actively promoted by the monarchs of the 18th century to play that role.
Failing to reinforce the Great Council certainly could have been a deliberate strategy as part of the Austrian Habsburgs attempts at least until Maria Theresa not to upset the delicate balance of the composite state. A strong Great Council was bound to hurt the particularistic feelings of the provinces at some point, something which was especially avoided in the period of the Theresian Compromise. As is well-known, Joseph II broke with this tradition, but he was equally unwilling to use the Great Council as an instrument of state-formation, albeit fordifferent reasons. In the Emperors worldview, the Great Council as court par excellence for the privileged must have been something of an anomaly, an outdated remainder of the old order. When he rearranged the entire judicial organization of the Netherlands, there could be no doubtin his mind that the court needed to be abolished.
Obviously, the Great Council never really protested this course of events. As the Sovereigns Council by excellence, it could do nothing but obey the sovereign, even if it meant that the Great Council and its members would be demoted to a position of secondary importance. Only in times of crisis did the Austrian Habsburgs again rely on the tribunal. Yet, once peace had been more or less restored, they degraded it back to a second-rate role. Asa result, the Great Council never held (or took) its fate in its own hands, and merely underwent the events of the 18th century.
The Great Council however, was certainly no exception. The Parlement de Paris in France and the Reichskammergericht in the German Empire suffered in varying degrees the same fate. While they once might have been agencies ofchange, it could be argued that these three superior courts no longer had much agency at all in the 18th century.
Date:1 Oct 2008 → 1 Jul 2013
Keywords:Great Council
Disciplines:Historical theory and methodology
Project type:PhD project