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AccueilNumérosvol. 23, n°1The Cost of Litigation

The Cost of Litigation

Assessing Legal Costs at the Local Civil Courts of the Eighteenth-Century Brugse Vrije
Ans Vervaeke et Griet Vermeesch
p. 27-45

Résumés

Les historiens ont été nombreux à reprendre les doléances exprimées dans l’Europe moderne selon lesquelles les requêtes en justice étaient excessivement complexes et coûteuses. Toutefois, les travaux universitaires soulignent également que les requérants n’étaient pas nécessairement les victimes passives d’arcanes juridiques lisibles des seuls professionnels du droit. Cet article évalue le coût du litige tel qu’il était réellement utilisé, notamment dans le Franc de Bruges (aujourd’hui la Belgique) au XVIIIe siècle. De nombreuses plaintes n’ont pas dépassé les premières étapes de la procédure, ce qui amène à conclure que les coûts initiaux donnent une idée exacte du prix réellement payé par de nombreux requérants, soit environ un mois de revenu d’un travailleur qualifié. De plus, la plupart des affaires closes dans les premières phases de la procédure ont progressivement vu leur durée de traitement diminuer.

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Texte intégral

  • 1 Hubert (1889, p. 152).
  • 2 Van Hille (1973).

1In 1787, Emperor Joseph II issued an order that made a tabula rasa of the judicial system of the Southern Netherlands (present-day Belgium). During a tour in 1781, he had diligently gone through a mass of petitions of subjects who had criticised the lengthy duration and high cost of litigation. These petitions had strengthened him in his conviction that the legal system was littered with abuses, and that blame for this lay with the complex tangle of courts and in the fact that there were too many lawyers (advocaten), local counsels (procureurs), and civil-law notaries. Local counsels, in particular, were accused of being “artisans de chicane”.1 To the Emperor’s mind, they were responsible for stimulating conflicts, complicating proceedings, and driving up the costs of litigation. Judicial reform should therefore also involve the abolition of the position of local counsel and of the sale of public offices. However, the professional groups affected, including members of local elites, were successful in opposing these reforms. A month later, the reforms had already been revised.2

  • 3 D. Veall (1970).
  • 4 Brizay, Sarrazin (2002, p. 109-122).
  • 5 Van Rhee (2004, p. 247); Smithuis, Staüdt (1997, p. 69-85); Martyn (2000).
  • 6 For the Habsburg Low Countries: Rousseaux (1997, p. 129-161); Dupont-Bouchat (1997, p. 239-242); (...)

2The complaint that civil legal proceedings were unnecessarily complex and expensive was voiced almost universally across early modern Europe. In England, dissatisfaction in the mid-seventeenth century regarding the royal courts gave rise to a broad popular movement towards law reform, in which pamphleteering campaigns were run, criticising among other things the cost and duration of litigation.3 In France, at the end of the seventeenth century, Charles Loyseau wrote an influential pamphlet about manorial courts, with the telling title “Discours de l’abus des justices de village”.4 Numerous reforms were drawn up, always with the goal of limiting the cost, length, and complexity of legal proceedings.5 This also applied to that part of the Netherlands which fell under Joseph II’s authority. Historiography somewhat echoes the contemporary conviction that lawyers and local counsels had a disastrous impact on the complexity and cost of legal proceedings. Increasing professionalisation of the judicial system allegedly led to a situation in which only specialists could comprehend proceedings, whose complication and extension they benefitted from financially, to the disadvantage of litigants. Such views are based primarily on normative sources, which are often harshly critical of perceived abuses on the parts of lawyers and local counsels.6

  • 7 Wijffels (1997, p. 163-187).
  • 8 Castan (1980a, 1980b); Garnot (2007); Garnot (1996, 2000).
  • 9 For instance Garnot (2005, p. 61-72); Veall (1970).
  • 10 Smail (2003).
  • 11 Ströhmer (2013).
  • 12 Dinges (2004, p. 159-175); Vermeesch et al. (2019).

3However, as Alain Wijffels has previously argued in relation to the Great Council of Malines, normative sources need to be gauged against the facts.7 Owing to a French historiographic tradition that emerged in the writings of Nicole Castan in the 1980s,8 and that is still thriving today, social and economic historiography has shifted attention from norms to practice, whereby the functioning of many courts has been demonstrated to have been flexible and efficient, despite largely politically motivated criticisms.9 These historians emphasise that litigants were not necessarily the defenceless and passive victims of incomprehensible layers of litigation simply concocted at the whim of local counsels and lawyers. Instead, the active role of litigants and the broader local community in the dispensation of justice is addressed.10 In German historiography, the way litigants judiciously calculated the cost of justice has been addressed as well, coining the term “Jurisdictionsökonomie”, inspired by the New Institutional Economics. The way law courts and litigants operated, also involved economic competition, induced from below.11 It is also found that the procedural aspect of the legal system was only one part — albeit an important one — of a much wider range of dispute mediation fora. It is pointed out, for example, that in many courts, litigants often terminated their proceedings long before a judgement could be pronounced. This does not mean that the court did not function properly, as was once thought. The greater likelihood is that litigants used the court strategically to prise an extrajudicial solution from their opponents.12 These insights warrant new questions in relation to court use, which may shed new light on the costs of litigation in the early modern period. If indeed it is the case that few legal actions led to a final judgement, which stage of proceedings did they actually reach? And what, in this context, was the price of legal proceedings?

4By focusing on these questions, this article aims to build on these historiographic trends. Here, an assessment is made of the costs of litigation in the clearly demarcated case of the courts of the Brugse Vrije (the castellany or rural hinterland of the city of Bruges, sometimes referred to in English as the Franc of Bruges) on the eve of the Josephinist reforms, considering the flexible manner in which litigants used the court. The Brugse Vrije was an extensive rural district. While a number of small manorial courts operated in the South of the Vrije, inhabitants of the North took their disputes to two courts located in the city of Bruges: the kamer and the vierschaar. These courts have bequeathed to us a remarkably rich archive that allows us to identify the stages to which litigants conducted proceedings, and how much it cost them. In this research, use has been made of hundreds of case files, as well as a list of fees and lists of costs. In the following section, the various legal procedures are presented, the volume of cases appearing before the courts in question is discussed, and an analysis is made of how long proceedings lasted, i.e. to which phases litigants allowed their case to run. In the subsequent section, the price of litigation is then considered in conjunction with the manner in which the court was used. In the third and final section, it is determined whether or not the cost price of judicial proceedings rose during the eighteenth century.

Litigation in the Brugse Vrije

  • 13 Huys (1997, p. 465-466).
  • 14 Inghelbrecht (2006); Gilliodts-Van Severen (1879a, p. 264).
  • 15 In 1717 a total of 737 cases were waged before the vierschaar and 374 before the kamer.
  • 16 Martyn (2009, p. 28); De Smet (2001, p. 28).
  • 17 Exact figures lack, yet bylaws were repeatedly issued against procureurs who assumed tasks of law (...)

5Inhabitants of the 67 northern parishes of the Brugse Vrije could settle their civil disputes at the vierschaar and the kamer, which were both located at the Burg in Bruges.13 The vierschaar was both a criminal and a civil-law court, and was presided over by two aldermen-judges, selected each season from among the 27 sitting aldermen. The kamer was served by five aldermen-judges. Both courts were dominated by disputes over contracts and credit. Whereas the vierschaar heard relatively simple cases, the kamer was a forum in which more complex cases came up.14 The complexity of the content in the kamer cases was also reflected in fewer cases in comparison to the vierschaar.15 Litigation at both courts was carried on primarily in writing, with local counsels and lawyers playing a crucial role. Local counsels represented the litigating parties in court, and ensured that the correct documents were copied and submitted. They were not university educated, but had gained practical experience on the job. Where substantive advice or the drafting of legal argument was required, litigants could avail of a lawyer, who did have the benefit of a university education.16 Some local counsels were caught taking on tasks beyond their remit which, under the law, were reserved unequivocally for lawyers. Of course, due to their experience, local counsels were in fact capable of providing substantive advice, even though this was strictly prohibited.17

6A simplified overview of the documentary proceedings in which lawyers and, to a greater extent, local counsels played a decisive part, is presented in Figure 1. In summary, the proceedings ran as follows: the local counsel submitted pleadings and other documents to the court registry, which were then copied by the local counsel of the opposing party, who then responded in writing together with a lawyer. This exchange could be repeated several times in the form of reply, rejoinder, etc., with the aim of narrowing the focus down to the facts and juristic interpretations on which the litigants agreed and disagreed. Next, the documents were compiled and passed on in a so-called “proceedings bag” to the aldermen, who based their provisional decision thereon. Only then did the litigants commence with their evidence-based argumentation. Here, on the basis of standard procedures, the litigants provided evidence, or legal officials examined witnesses. In each phase, a varying number of documents was thus exchanged.

Figure 1. Simplified overview of proceedings at the civil courts of the Brugse Vrije.

  • 18 See for instance: Brooks (1989); Horwitz, Polden (1996); Kaiser (1980); Le Bailly (2011).
  • 19 The striking decline of court business during the first half of the eighteenth century is discuss (...)
  • 20 The cases were filed for respectively the kamer and the vierschaar: the sample of the late sevent (...)

7The extent of the Brugse Vrije’s kamer and vierschaar clientele changed considerably during the eighteenth century. Just as has been determined in relation to several other courts in Western Europe, the number of cases heard at the Brugse Vrije courts also fell considerably.18 While around 1700 some 2000 cases were being instituted annually for both courts combined, this number fell to around 500 cases by the mid-eighteenth century, and to 400 at the century’s end. In other words, the first half of the eighteenth century in particular saw a substantial reduction in the kamer and the vierschaar’s work volume, with the vierschaar in particular losing its appeal. This article is not the appropriate place to go into greater detail into this fascinating phenomenon, which is nonetheless an important contextual element in any credible explanation of the functioning of the courts during the eighteenth century.19 Given the large number of cases, samples were taken in order to analyse the duration of the proceedings. Mindful of the shifting volume of cases, samples were taken for the periods 1680-1682, 1746-1752, and 1791-1796. The first sample coincides with the years just before the marked decline of court business. The second sample corresponds to the all-time low number of court cases. The third sample at the end of the period concerns a relatively turbulent period. However, if we consider the number of cases that came up at the kamer and the vierschaar in these years, they appear to be representative of the trends which we encounter in the second half of the eighteenth century. The choice of samples was largely informed by the availability of source materials that could be linked to court records so as to reconstruct the social profiles of litigants. For both 1748 and 1796 censuses and fiscal sources could be used. The late-seventeenth-century sample unfortunately did not include similar possibilities to crosslink sources, yet a limited number of tax rolls were used to somewhat fill this gap. All in all, the analysis is based on 214, 347, and 241 case files respectively, selected randomly from the thousands of archived files.20

8As previously mentioned, it has been established that only a small minority of cases came to a final judgement at many courts in early modern Europe. That applies equally to the courts studied here. A detailed analysis of the cases in this study that came up at the Brugse Vrije’s vierschaar enables us to determine the phases which prematurely terminated cases actually reached. The details are presented in Table I. Unfortunately, the duration of the proceedings could not be verified for all the cases in the samples. In the sample of late seventeenth-century cases in particular, the file data required for the calculation of the duration of proceedings is more often than not absent. Moreover, this part of the analysis is based on the files of the vierschaar, where the course of proceedings could be established more clearly and for a greater number of files. All in all, the calculations are based on 69 cases from the late seventeenth century, 228 from the mid-eighteenth century, and 194 casesfrom the late eighteenth century.

Table I. Procedural phases reached at the Brugse Vrije’s vierschaar, ca. 1680-1796.

1680-1682

1746-1752

1791-1796

N

%

N

%

N

%

Total cases

69

100

228

100

194

100

Phase 1

69

100

228

100

194

100

Phase 2

51

74

131

58

105

54

Phase 3

16

23

35

15

31

16

Sources: RABrugge, Verzameling procesbundels van het Brugse Vrije (collection case files Franc of Bruges).

9It appears that in the mid-eighteenth century, in almost half of the cases the defendant never responded (at least, not officially) to the complaint brought against him. The vierschaar dealt principally with debt cases. It is quite possible that a significant number of plaintiffs limited themselves to instituting proceedings, with the primary intention of formalising an informally attributed loan. Of the remaining 58 per cent of cases, the same number was withdrawn during or just after the first phase of discussion (reply and rejoinder — phase 3). Only a small minority of cases — 35 of the 228 — reached phase 4, in which evidence was presented. These details are less reliable for the first sample, but there too, fewer than a quarter of cases reached the evidence presentation phase. In the years 1791-1796, that was the case for a mere 16 per cent of cases. If we assume that not all plaintiffs necessarily withdrew their cases due to lack of funds, then it is reasonable to calculate the cost as being that of a prematurely withdrawn case.

The cost of litigation

10An analysis of the duration of proceedings makes clear that the vast majority of litigants in the eighteenth-century Brugse Vrije never went further in their legal proceedings than submitting a claim, responding to such a claim (or not, as the case may be), and a brief written debate on the correct facts and legal interpretations. Where prior historiography sometimes tended to ascribe this premature termination of legal proceedings to a failure of the court, it is accepted today that many litigants probably often reached out-of-court settlements. The aim of the legal procedure was not to enforce a final judgement, but to persuade the defendant to cooperate in finding a solution. In other words, the court was only one element in the resolution of the conflict, albeit an essential one.

11As the primary objective of many plaintiffs indeed was to complete the initial phase of litigation as a means of reaching an out-of-court settlement, the question of how much it cost to institute the so-called “initial phase” proceedings is justified. We identify the “initial phase” as the proceedings which took place up to and including phase 2 (see Figure 1). It is unfortunately not possible to further analyse which cases already ended in phase 1. The source material does not permit us to analyse all of the applications to conduct proceedings which were rejected along with those accepted by the court. The archived source materials only document the cases which effectively commenced. It should be noted here that the so-called “initial phase” ended as soon as the defendant provided a statement of defence, and proceedings entered phase 3.

  • 21 Follain (2005, p. 29).

12The question of the cost of initiating court proceedings is more easily posed than answered, and neither did contemporaries always have a clear idea of this. In principle, fixed rates were in place, based on which the costs of each small procedural act could be determined exactly. Apart from the local counsel and lawyer, the registrar, bailiff and clerks were also paid for acts they performed on behalf of a litigant, including the drafting and processing of court documents. Such “piece rates” have been the object of scrutiny for contemporaries and historians, primarily due to the fact that legal officials generally had no other sources of income, and had invested handsomely in purchasing their office. As Antoine Follain put it in relation to early modern French law courts, it could be said of the “gens de justice” that they “achètent en gros de la justice et la revendent au detail”.21 It is therefore worth the effort of checking the amounts of such payments in the initial phase of litigation.

  • 22 Rousseaux (1997, p. 148-152).

13A good starting point is an assessment of the applicable rates. Joseph II himself is of use here as, in 1783, he sent a circular letter to all jurisdictions in the Netherlands in order to gain an overview of the rates being charged. The list of fees subsequently drawn up in the Brugse Vrije is used in this article to provide insight into court costs. However, the insight provided is limited. The list of fees only provides unit prices, while in reality, a certain type of service is often requested several times. For example, the price is shown per page, while the number of pages required to set out the details of a claim varied. Therefore, the case files in the sample in question will also be used to gain an insight into the actual costs. A more important problem, however, is the lack of clarity concerning the pay of local counsels and lawyers. Over the course of the seventeenth and eighteenth centuries, the central government had enquired by circular letter about the fees of local counsels and lawyers on a number of occasions, and had received only vague replies. Local governments themselves were largely unaware of this.22 The amounts that can be reconstructed on the basis of late eighteenth- century rates and the case files are, in other words, at the lowest end of the scale. Nonetheless, they provide a good indication of the costs of initiating court proceedings, and how these developed in the eighteenth century.

  • 23 RABrugge, Brugse Vrije Bundels, nr. 262: Dossier i.v.m. proceskosten en erelonen, 1784-1789. This (...)

14According to the list of fees from 1784, a plaintiff required around 5 Flemish shillings at the kamer and 7 Flemish shillings at the vierschaar to start his suit. This money went primarily on paperwork and procedures: the summons issued by the amman (a legal officer with a bailiff-like function), the local counsel’s power of attorney, and the claim or application. The difference between both courts can thus be explained by a difference in paperwork. While the plaintiff needed three documents at the kamer, four were required at the vierschaar. In the latter court, a letter of complaint was required in addition to the claim, which was probably used for the summons.23 First impressions thus suggest that the earliest stage of proceedings was cheap. It was the equivalent of three days’ wages for a skilled worker.

  • 24 RABrugge, Brugse Vrije Bundels, nr. 262: Dossier i.v.m. proceskosten en erelonen, 1784-1789. This (...)
  • 25 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 25.753.

15In order to ascertain whether these rates were also charged in practice during the eighteenth century, we can make use of some so-called “fee statements”, which were drawn up following the conclusion of litigation. After the judgement, the winning party’s local counsel noted down all the costs before submitting these to the court for inspection. These fee statements therefore contain a list of all the budget items, which are also to be found in the 1784 list of fees.24 They demonstrate that, in reality, a plaintiff paid three to four times more for the initial phase. This was not infrequently the case, for example, when the opposing party failed to respond immediately. In total, a defendant could be summoned three times. In 1748, for example, Pieter De Vlieghere summoned his opponent Pieter De Clerck three times to the vierschaar, due to rent arrears. Each new summons had to be assessed by the local counsel and the amman. In this way, the fee for the summons ran up to 12 Flemish shillings, while this would only have cost 4 shillings if his opponent had responded immediately.25 Higher costs were also run up in cases where several opponents had to be summoned.

  • 26 Varenbergh (1740, p. 182-188); Symoens (1942, p. 9); Huyghe (1949, p. 1).
  • 27 Varenbergh (1740, p. 182-188); Symoens (1942, p. 34).
  • 28 Symoens (1942, p. 9).

16There were also other reasons which caused the final costs to turn out higher. For example, the list of fees did not include taxes, in the form of stamp duties. In the midst of the turmoil caused by the War of the Spanish Succession, King Philip V of Spain (1700-1713) sought new sources of income. Among those found was a new tax in the form of stamp duties. Building on local predecessors to these taxes, he introduced a levy on various documents on 16 January 1703. Legal documents would from now on have to bear a royal stamp.26 The rates for this stamp duty varied depending on the type of document, but for most legal documents, users paid four stuivers (eight Flemish groats) from the beginning of 1703. If a document failed to bear a stamp, its legality could be disputed.27 Stamp duties remained in force until 1795, when the French annexed the Southern Netherlands.28 They contributed to the rising cost of litigation. In the initial phase alone, at least two stamps were required: one on the claim or application and one on the power of attorney, but the number could be greater, as stamps also had to be attached to pieces of evidence. This meant, therefore, that at least 8 stuivers in stamp duties had to be paid in the initial phase, which amounted to an extra one or two days’ wages for the litigant worker.

  • 29 RABrugge, Inventaris van het Oud notariaat, nr. 128: Frans Cortals band 2 januari 1755-30 decembe (...)
  • 30 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 20.222.

17What, according to contemporaries, particularly contributed to the costs of litigation however, were the fees demanded by local counsels and lawyers for their services. As will be shown in the next section, complaints in this regard were not entirely unfounded. Over the course of the eighteenth century, local counsels appear to have used increasing quantities of paper in providing the same services, while being paid per written page. How much local counsels earned is as unclear to historians today as it was to contemporaries. In any case, some enjoyed a high standard of living. An inventory of the estate of local counsel Francois Plasschaert of Bruges, active from 1717 until his death in May 1755, demonstrates that the man had collected at least 40 paintings during his lifetime, owned a considerable quantity of silver cutlery, and possessed silver and gold coins to the value of 235 Flemish pounds. His house consisted of seven rooms, while most contemporary houses had only one or two.29 In order to financially maintain such a lifestyle, a solid income was required. Equally little is known about the fees of lawyers in the Brugse Vrije. The 1784 list of fees and the fee statements tell us nothing at all about this. One case file does however show us that these costs could run up rapidly. Lawyer Philippe Salens took Lodewijk Geeraert to court at the vierschaar in 1750. He had represented Geeraert in another case, for which he was never paid. In total, he charged 1 Flemish pound, 6 shillings, and 8 groats. In return for this fee, he had gone through the documents relevant to the substantiation of his arguments in the claim and the reply, and written these out. Notwithstanding the limited nature of this assignment, the fee was considerable.30 These services alone would cost a worker the equivalent of 14 days’ wages, and came over and above the aforementioned legal costs.

  • 31 RABrugge, Registers Brugse Vrije, nr. 16.706: Registers met ordonnanties, f. 4V.

18In addition to the costs incurred by the litigants for stamp duties and the fees of court officials, they also faced indirect costs. As will be seen below, litigation demanded time. Since local counsels represented litigants in court, plaintiffs and defendants could largely avoid having to travel to court themselves. Nonetheless, their presence was sometimes required, for example when swearing oaths or giving testimony. This meant that litigants sometimes had to pay the costs of transport and lodging. Moreover, for the many litigants whose income was derived from agrarian activity, a visit to the court meant a lost working day. To save expense, litigants combined their visits to court with other activities in the city of Bruges to the greatest extent possible. A resolution of 1773 states that this practice was frequently abused. Some litigants registered themselves as being in Bruges each time they were there, even when they carried out activities that had nothing to do with their case. In this manner, they could claim additional compensation from the opposing party should that party lose the case.31

  • 32 RABrugge, Brugse Vrije Bundels, nr. 267: Kantoor van de informatieklerk gefailleerd, 1790.
  • 33 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 16.053.
  • 34 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 12.089.

19Such indirect costs could also be a consideration when deciding to file a case at the kamer or the vierschaar, or rather opt for extrajudicial means. This can be concluded from an analysis of the distance from the places of residence of plaintiffs to the court in the cases studied here. The district courts of the Brugse Vrije were located in the heart of the city of Bruges, from which some parishes were as much as 40 kilometres distant. Figure 2 shows the distances from the plaintiffs’ places of residence to the city of Bruges. A little over half of the plaintiffs lived within a twenty-kilometre radius. According to the “clerk of informations” (the person who heard witnesses), this effectively amounted to a four hour walk at most.32 This meant that the vast majority of people could walk to Bruges to attend their proceedings, and back home, in one day or less. In the group of litigants that lived within a 10-kilometre radius, a large number of plaintiffs lived in Bruges itself. That was the case for both the second and the third sample group. For the period 1680-1682, no mention is made of any plaintiffs resident in Bruges proper, but this is primarily due to the limited registration of place of residence in these files. Where litigants lived further away than twenty kilometres, overnight lodgings were necessary when the person in question covered the distance on foot. A number of plaintiffs lived somewhat further away. In some exceptional cases, people — presumably affluent — lived much further away. In 1681, a Jacobus Van Cantfort demanded the return of a sum that corresponded to several months of skilled worker wages. As an Antwerp shopkeeper, it might be assumed that he had done business with inhabitants of the Brugse Vrije.33 In 1747, Pieter Ostaert, a resident of Ath, came to the vierschaar to demand the return of a sizeable sum.34 However, the majority of plaintiffs lived within a radius of twenty kilometres of Bruges, which after all made up a large part of the jurisdiction. This suggests that indirect costs were considered in decisions to make use of Bruges’ courts, or not, as the case may be.

Figure 2. Distance of litigants’ places of residence to the Brugse Vrije’s vierschaar and kamer, ca. 1680-1796.

Sources: RABrugge, Verzameling procesbundels van het Brugse Vrije (collection case files Franc of Bruges).

  • 35 Vervaeke (2018, p. 185-220).

20All in all, we can assume that a minimum of approximately one month’s income from skilled labour was required to finance the initial phase of a court case. For such a sum, a plaintiff could have the necessary documents drawn up, copied and presented with the assistance of a local counsel, a lawyer, an amman, and clerks at the vierschaar. However, the amount could rise quickly if the opposing party did not respond immediately or if the case was more complex, demanding greater effort on the parts of the local counsel and the lawyer. Use of the vierschaar was perhaps beyond the grasp of wage-earning employees. Though the aim of this article is not to analyse the social profile of the plaintiffs and defendants of the courts being studied, it might briefly be pointed out that, indeed, the clientele was drawn primarily from the middle classes and the elites. Merchants, farmers with farms of at least 30 hectares, and the services sector were over-represented in comparison to their demographic share in society. In contrast, workers and smaller farmers were strongly under-represented, while these groups dominated society in the eighteenth-century Brugse Vrije in terms of their demographic reach. This is also reflected in the types of conflicts that were heard in these courts. Civil courts primarily served to resolve disputes over debts. The average debt at around the mid-eighteenth century was around 27 Flemish pounds, rising to approximately 40 Flemish pounds by 1790-1795.35 These amounts were beyond the scope of the poorer in society. By contrast, the judicial process was within the grasp of those farmers (including some smaller farmers) who maintained numerous credit relationships. However, many of these hoped to restrict themselves to the initial phases of proceedings.

Development over Time

21Subsequently, it is pertinent to ask whether court use became more expensive as the eighteenth century wore on. From the fee statements consulted, rates appear to have remained stable throughout the century. The prices stated in the 1784 list of fees were also charged throughout the entire eighteenth century. In reality, however, litigation did actually become more expensive, and that was not only due to the introduction of stamp duties. An important factor causing prices to rise was an increase in the use of paper. In time-honoured tradition, each written page was charged for, but during the eighteenth century, litigating parties evidently needed a growing number of pages to express their arguments. This is clear from the number of pages that local counsels filled in order to set out litigants’ complaints. Table II illustrates that the number of pages used in initial documents increased. In the Brugse Vrije’s vierschaar in 1680-1682, this initial document consisted of one to two pages on average. This rose to an average of around four pages by the mid-eighteenth century, and thereafter doubled to eight pages at the end of the ancien régime. The same trend is observable in cases brought before the kamer. There, an application consisted of around two pages at the end of the seventeenth century, but five by the mid-eighteenth century. Thereafter, the number of pages in the initial document rose to around nine pages on average. The median also shows the same development.

Table II. Number of pages in initial documents (claims or applications) at the Brugse Vrije’s vierschaar and kamer, ca. 1680-1796.

Claim/Application

Vierschaar

Kamer

1680-1682

1746-1751

1791-1796

1680-1682

1746-1751

1791-1796

Average

1.35

4.17

8.51

2.21

5.3

9.18

Median

0.5

4

8

2

5

8

Minimum

0.5

1

3

1

2

2

Maximum

16

11

27

4

16

40

No.

142

215

189

57

77

34

Sources: RABrugge, Verzameling procesbundels van het Brugse Vrije (collection case files Franc of Bruges).

22In order to demonstrate that the increasing amount of paperwork was not due to procedural changes, the number of pages in the statements of defence was also counted. Table III shows the number of pages statements of defence comprised, for both the vierschaar and the kamer. Here too, a clear trend towards increased paper use is observed. In the vierschaar at the end of the seventeenth century, the average statement of defence comprised some three pages. This increased to an average of five pages around 1750, and rose further to around seven pages at the end of the eighteenth century. In the kamer, too, local counsels filled increasing numbers of pages: from an average of three around 1680, to five by the mid-eighteenth century, to around eight pages at the end of the eighteenth century. Therefore, despite the stability of the pricing structure, litigation became more expensive as the eighteenth century progressed.

Table III. Number of pages in statements of defence at the Brugse Vrije’s vierschaar and kamer, ca. 1680-1796.

Response

Vierschaar

Kamer

1680-1682

1746-1751

1791-1796

1680-1682

1746-1751

1791-1796

Average

2.86

4.55

7.44

2.97

4.98

7.68

Median

3

4

6

3

4

6

Minimum

1

1

1

1

2

1

Maximum

7

13

26

6

12

17

No.

49

76

95

31

45

22

Sources: RABrugge, Verzameling procesbundels van het Brugse Vrije (collection case files Franc of Bruges).

23This increase in paper use can be explained by a combination of the cost structure and the specific patterns of litigation which we encounter in the eighteenth century. As mentioned previously, the number of cases brought before civil courts in the Brugse Vrije fell considerably during the first half of the eighteenth century. The fact that the courts heard fewer cases and therefore drew less clientele also had an impact on their functioning. Local counsels who were paid per assignment must have felt this reduction in their pockets. In order to limit their loss of income, officials profited from the system whereby they could charge fees to their clients. By filling more pages, they generated more income. Complaints about local counsels who increased their income by abusing the system of piece rate payment were thus not entirely fabricated.

  • 36 Van Zoomeren (1685, p. 111); Gilliodts-Van Severen (1879a, p. 264); Vervaeke (2018, p. 126-127).

24Plaintiffs and defendants did not, however, simply submit to the cost-increasing strategies of their local counsels. During the eighteenth century, we also see trends that led to litigants achieving results at court more quickly, which in turn had an impact on the price of litigation. For example, it is striking that litigants added increasing amounts of items of evidence to their files before their cases reached the evidence-based argumentation phase. In many courts, such as the Council of Flanders, but also the kamer of the Brugse Vrije, adding all the evidence at the outset was obligatory.36 However, we observe that cases brought at the vierschaar also saw an increase in the number of pieces of evidence included in the initial phase of proceedings. While the addition of evidence led to additional costs, it could also positively affect the overall cost of the proceedings. Intimidated by the accuracy of this material, the defendant might be inclined not to proceed with further legal action, choosing instead to seek a resolution by informal means, as clear evidence could accelerate the decision of the judges to the detriment of the defendant. In these cases, the costs remained limited, or were at the expense of the opposing party. Table IV illustrates how many pieces of evidence, also referred to as overleg in the sources, were added to the claim or application in the vierschaar. Particularly at the end of the eighteenth century, the number of initial documents with added items of evidence increases. Here, a significant number of plaintiffs did not restrict themselves to one item, but added several: 24.8 per cent of plaintiffs did so in the years 1791-1796, compared to 10.5 per cent in the years 1680-1682 and 6.1 per cent in the years 1746-1752.

25It is clear that local counsels also profited from this, because they were also paid for these pieces of evidence per copied page. However, litigants could observe with some satisfaction that the duration of proceedings had decreased by the end of the eighteenth century. There are good reasons to assume that this is due to the fact that evidence was already being added at an early stage. Table V shows the duration, per phase of the proceedings, expressed in terms of numbers of days in the vierschaar. This is calculated from the day of the claim or application up to and including the last date appearing in the inventory of court documents entered in the case file. That could either be the date of an interim or final judgement, or, just as easily, the final date of an action or legal act noted. In the latter case, the proceedings had been terminated without interim or final judgement. It is noteworthy that the cases which were withdrawn at an early stage, i.e. those in which the opposing party had not yet officially responded, ended progressively sooner.

Table IV. Number of pieces of evidence added to the initial document (claim/application) at the Brugse Vrije’s vierschaar, ca. 1680-1796.

Pieces of evidence

1680-1682

1746-1752

1791-1796

Average

0.66

0.52

0.97

N

%

N

%

N

%

No. case files 0 piece

72

58.1

141

57.3

71

35.9

No. case files 1 piece

39

31.5

90

36.6

78

39.4

No. case files 2 pieces

5

4.0

13

5.3

36

18.2

No. case files >2 pieces

8

6.5

2

0.8

13

6.6

Total No.

124

100

246

100

198

100

Sources: RABrugge, Verzameling procesbundels van het Brugse Vrije (collection case files Franc of Bruges).

26While the median was some 248 days in the late seventeenth century, this had fallen to 71 days by the mid-eighteenth century, and 62 days in the years 1791-1796. This may reflect plaintiffs’ acting out of necessity because they could not afford the expense. In combination with the data presented in Table IV, however, it is also plausible that a significant number of plaintiffs were able to bring the opposing party to an extrajudicial agreement much more quickly, by directly demonstrating the evidence they possessed. The median for cases which terminated in the third phase of proceedings also fell from 177 days to 156 days to 141 at the end of the eighteenth century. As is made clear from figure 1, phase 3 included a continuation of the discussion aimed at gaining clarification of the legal and factual interpretations and the facts. Therefore, in the course of the eighteenth century, litigants who restricted themselves to that phase of proceedings also withdrew more quickly from cases.

27It is striking that cases which proceeded to the fourth phase — the phase of evidence-based argumentation (or further evidence-based argumentation, as the case may be) — demanded more time in the eighteenth century. The median of the number of days progressed from 449 days in the years 1680-1682 to 602 days in the mid-eighteenth century, to 545 days in the years 1791-1796. This finding would also appear to confirm that the addition of evidence in the early phases of proceedings had an impact on the duration of proceedings. Cases in which the evidence introduced in the initial phase of proceedings appears to have been insufficient to convince the opposing party to agree to settle, also appear to have required more time in later phases.

Table V. The duration of proceedings per phase, expressed in days, for the Brugse Vrije’s vierschaar, ca. 1680-1796.

Vierschaar proceedings

1680-1682

1746-1752

1791-1796

Phases

2

3

4

2

3

4

2

3

4

Average

308

202

826

187

168

724

129

212

605.8

Median

248

177

449

71

156

602

62

141

545

Minimum

101

30

172

1

1

77

1

6

125

Maximum

885

604

3851

3639

758

2232

1190

881

1286

No.

18

35

16

97

96

35

89

74

31

Sources: RABrugge, Verzameling procesbundels van het Brugse Vrije (collection case files Franc of Bruges).

  • 37 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 8.387.

28A considerable number of litigants were evidently less inclined to withdraw from cases in the later stages, which resulted in lengthier proceedings. This brings us back to the complaints heard by Joseph II during his 1781 tour, about “chicaneuse” litigants and their local counsels, who drew out court cases unnecessarily. Given the numbers presented here, those complaints were to some extent justified. However, they only applied to a small number of exceptionally lengthy cases. Those outliers are also included in table V. In this way, a court case could last several thousand days. The case of parish priest Niclays Roberse versus Joseph Winneseele in 1749 concerning funeral rights continued for no less than ten years.37 It is such cases in particular which attracted the attention of contemporaries — and their lamentations concerning the miserable tardiness of the courts. It is, however, questionable whether those complaints were representative of the manner in which courts functioned in practice, and of the manner in which litigants actively made use of them.

Conclusions

29This article has provided an overview of the costs of litigation at the courts of the Brugse Vrije, with a particular focus on the costs of initiating proceedings. First, it was established that many cases did not go beyond the second phase, leading to the conclusion that initial costs provide an accurate impression of the price actually paid by many litigants. In order to summons an opponent, plaintiffs would have done well to factor in sums roughly amounting to a month’s skilled worker wages. For this amount, the litigant could have a summons served, appoint a local counsel, receive a limited amount of lawyer’s advice, and have a claim drafted. Where there were additional costs, overall prices rose considerably. When an opponent had to be summoned more than once, or when the plaintiff submitted items of evidence (and therefore additional paperwork), costs rose. This can be explained by the manner in which the system of court costs was structured. Litigants paid for each procedure and written page, and for stamp duties for each submitted document. The more litigants became entangled in the proceedings and had to rely on legal professionals, the more costs could accumulate. The piece rates that these professionals charged in exchange for the investment they had made in their profession, meant that litigants were confronted with charges for each and every procedure. Time and expense were proportional, except when proceedings were at a prolonged standstill.

30It has been further demonstrated that many cases already reached a conclusion after several weeks or months. This serves to confirm the view that instituting legal proceedings was part of a quest for extrajudicial resolutions to conflicts. Considering that the courts studied here primarily heard debt cases, it is likely that numerous complaints also fall within the category of formalisation of an informal loan. The duration of proceedings was, however, also subject to change during the eighteenth century. In particular the many cases which ended in the second or third phase of proceedings, took progressively less time to reach a conclusion. However, that did not apply to cases which continued on to the phase of evidence-based argumentation. Such cases took a little longer, with a number of outlier cases lasting several years. In this article, it is argued that the reduction in duration can be explained to some extent by the fact that litigants added items of evidence to files at the initial phase of court cases with increasing frequency.

31Another trend encountered was the fact that the costs of litigation increased because local counsels and lawyers consistently used increasing amounts of paper for the same procedures. The documents which were used to formulate claims or statements of defence contained increasing numbers of pages, whereby each page contained ever fewer words and lines. We have explained this trend by the sharp reduction in the number of cases conducted, which led to local counsels and lawyers looking for ways in which to compensate for lost income. This is an interesting finding. Though it has not been a primary objective of this article to explain why the volume of the courts’ case files fell so sharply during the eighteenth century, it has nonetheless provided indications that an increase in the cost price of the judicial process is more likely to have been a consequence than a cause of that reduction.

32The extent to which the cost had an impact on the accessibility of courts is difficult to determine. The institution of legal proceedings was not an option for all inhabitants. In particular, middling groups and elites made use of the courts, not least because the average debt burden was beyond the financial bounds of many. Nonetheless, we believe that we have ascertained that the initial costs of litigation were not insurmountable, and that legal proceedings did not necessarily have to last long before resulting in the desired effect. The complaints which gave rise to the Josephinist reforms, but which also resonated throughout the entire early modern period, cannot therefore be simply interpreted as objective evidence. It must not be forgotten that the petitions which were sent to the sovereign against the backdrop of legal proceedings were full of rhetorical strategies designed to show so-called “chicaneuse” opposing parties and their counsel in a bad light. Such rhetorical strategies must be viewed in the context of specific legal disputes. An analysis thereof could be carried out as part of future research. In general, we might conclude that, in cases brought before the courts of the Brugse Vrije in the eighteenth century, litigants were able to limit the amount of time and money they invested. This can at least be said for those conflicts which were resolved within formal legal proceedings. What took place beyond the bounds of the judicial system may forever remain unknown.

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Notes

1 Hubert (1889, p. 152).

2 Van Hille (1973).

3 D. Veall (1970).

4 Brizay, Sarrazin (2002, p. 109-122).

5 Van Rhee (2004, p. 247); Smithuis, Staüdt (1997, p. 69-85); Martyn (2000).

6 For the Habsburg Low Countries: Rousseaux (1997, p. 129-161); Dupont-Bouchat (1997, p. 239-242); Vael (1997).

7 Wijffels (1997, p. 163-187).

8 Castan (1980a, 1980b); Garnot (2007); Garnot (1996, 2000).

9 For instance Garnot (2005, p. 61-72); Veall (1970).

10 Smail (2003).

11 Ströhmer (2013).

12 Dinges (2004, p. 159-175); Vermeesch et al. (2019).

13 Huys (1997, p. 465-466).

14 Inghelbrecht (2006); Gilliodts-Van Severen (1879a, p. 264).

15 In 1717 a total of 737 cases were waged before the vierschaar and 374 before the kamer.

16 Martyn (2009, p. 28); De Smet (2001, p. 28).

17 Exact figures lack, yet bylaws were repeatedly issued against procureurs who assumed tasks of lawyers: State Archive Bruges (RABrugge), Registers stad en kasselrij Veurne, nr. 1035.bis: Ampliatie van de stijl van procederen (1788); Gilliodts-Van Severen (1879b, p. 517-519); Martyn (2014, p. 215-230).

18 See for instance: Brooks (1989); Horwitz, Polden (1996); Kaiser (1980); Le Bailly (2011).

19 The striking decline of court business during the first half of the eighteenth century is discussed in the PhD-manuscript of Vervaeke (2018). A decline of litigation has also been established for the Council of Flanders and the Great Council of Mechelen: Verfaillie (2014, p. 270-285); Verscuren (2015, p. 179-280).

20 The cases were filed for respectively the kamer and the vierschaar: the sample of the late seventeenth century included 65 cases for the kamer and 149 for the vierschaar; in the mid-eighteenth century 89 files at the kamer and 258 at the vierschaar; and in the late eighteenth century 42 cases for the kamer and 199 for the vierschaar. The case files have been catalogued: Inghelbrecht, Van Basselaere (2004).

21 Follain (2005, p. 29).

22 Rousseaux (1997, p. 148-152).

23 RABrugge, Brugse Vrije Bundels, nr. 262: Dossier i.v.m. proceskosten en erelonen, 1784-1789. This file contains fee statements for the year 1784; RABrugge, Verzameling procesbundels van het Brugse Vrije, nrs. 11.384, 15.421, 25.753.

24 RABrugge, Brugse Vrije Bundels, nr. 262: Dossier i.v.m. proceskosten en erelonen, 1784-1789. This file contains fee statements for the year 1784; RABrugge, Verzameling procesbundels van het Brugse Vrije, nrs. 11.384, 15.421, 25.753.

25 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 25.753.

26 Varenbergh (1740, p. 182-188); Symoens (1942, p. 9); Huyghe (1949, p. 1).

27 Varenbergh (1740, p. 182-188); Symoens (1942, p. 34).

28 Symoens (1942, p. 9).

29 RABrugge, Inventaris van het Oud notariaat, nr. 128: Frans Cortals band 2 januari 1755-30 december 1755; Casier (1991, p. 159-162).

30 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 20.222.

31 RABrugge, Registers Brugse Vrije, nr. 16.706: Registers met ordonnanties, f. 4V.

32 RABrugge, Brugse Vrije Bundels, nr. 267: Kantoor van de informatieklerk gefailleerd, 1790.

33 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 16.053.

34 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 12.089.

35 Vervaeke (2018, p. 185-220).

36 Van Zoomeren (1685, p. 111); Gilliodts-Van Severen (1879a, p. 264); Vervaeke (2018, p. 126-127).

37 RABrugge, Verzameling procesbundels van het Brugse Vrije, nr. 8.387.

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Ans Vervaeke et Griet Vermeesch, « The Cost of Litigation »Crime, Histoire & Sociétés / Crime, History & Societies, vol. 23, n°1 | 2019, 27-45.

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Ans Vervaeke et Griet Vermeesch, « The Cost of Litigation »Crime, Histoire & Sociétés / Crime, History & Societies [En ligne], vol. 23, n°1 | 2019, mis en ligne le 30 septembre 2021, consulté le 28 janvier 2022. URL : http://journals.openedition.org/chs/2357 ; DOI : https://doi.org/10.4000/chs.2357

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