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|M.W.J. de Bruijn, Husinghe
Een institutioneel-geografische studie van de rechtspraak over onroerend goed in de stad Utrecht in de Middeleeuwen (Utrecht 1994) 423-438.
Voor de Nederlandse samenvatting en slotbeschouwing zie ► Algemene samenvatting en slotbeschouwing van Husinghe ende hofstede.
of Martin W.J. de Bruijn’s PhD thesis
Husinghe ende hofstede
about the jurisdiction in real estate cases
in the city of Utrecht during the Middle Ages
Te citeren als: M.W.J. de Bruijn, ‘Summary of Martin de Bruijn's PhD thesis Husinghe ende hofstede about the jurisdiction in real estate cases in the city of Utrecht during the Middle Ages’ (www.broerendebruijn.nl/HusingheendehofstedeSummary.html, versie van [datum], geraadpleegd op [datum]).
Although the abolishment of the manorial claims and duties on the land are characteristic elements of the creation process of the medieval town, this side of urban development has hardly found thorough coverage in Dutch historiography so far. In this study some aspects of this liberation process are researched. The main objective was to analyse the development of the administration of justice in real estate cases in the territory of the city of Utrecht. As became clear, this process was quite complicated. Due to the pathfinding character of the study at hand, a lot of things remain hypothetical, especially for the earliest history.
The development of the city of Utrecht is characterised by spheres of influence that can be clearly distinguished: on the one hand the jurisdiction where justice was administered according to the canon law (the local immunities of the clerical institutions) and on the other hand the proper territories of the city where the secular law was in force.
An introductory chapter deals with the earliest developments in both jurisdictions and their mutual relations. In part I, the jurisdiction of the Church since the year 1050 is dealt with, and in part II the secular jurisdiction is covered, for which the granting of a charter to the city in or shortly before 1122 has been the point of departure.
The city of Utrecht had a rather modest start. In the seventh century Frankish settlers found a former Roman border fortress that had been abandoned already in the third century A.D. Here, close to the spot where the rivers Rhine and Vecht divide, they built a church dedicated to Saint Thomas. The then still heathen Frisians, however, destroyed this church shortly thereafter. In 690, the Anglosaxon missionary Saint Willibrord arrived in Utrecht and built a new church within the limits of the ruins of the former fortress. This church was dedicated to the Holy Saviour. Presumably around 720, Willibrord rebuilt the former Saint Thomas church and dedicated it to the patron of the Frankish kings: Saint Martin. Most likely, a little earlier Willibrord had been granted immunity for the Church territories in Utrecht. This means that all persons and property of the Church were excluded from the royal count's authority. This privilege was granted for both the present and future property of the Church. In the second half of the eighth century, Utrecht became a suffragan diocese of the metropolitan diocese Cologne and Saint Martin became the cathedral church.
In 723, the mayor of the palace Charles Martel granted the stronghold and the surrounding land to the Church of Utrecht. Possibly, later on more donations were added. In this way, all of the territory and its people came under its jurisdiction.
Apart from the clergy living within the limits of the fortress, a small population of laymen must have occupied the surroundings of Utrecht. Charters of that time mention free men and bond men of the Utrecht Church. Although some might have still held alodial property, it is likely that the majority of the peasants held their lands from the Utrecht Church. This could be either as a free tenant or on an unfree manorial basis. An ecclesiastical advocate must have administered justice over the people and possessions of the Utrecht Church in name of the bishop. The people that did not fall under the authority of the Church fell under rule of the imperial count. It is possible that both offices were combined already at that time.
Developments in the tenth and eleventh century
In the second half of the ninth century, the bishop and the clergy fled from the Norsemen. Around 925, Bishop Balderik and his clergy returned to Utrecht and restored the fortress and the churches. Meanwhile, these regions along the North Sea shore had become an integral part of the German Kingdom. Starting in the eleventh century, the bishops were called upon to participate in the political administration of the empire, and were granted large estates and public authority.
Since 723, the possessions of the Utrecht Church included most of the territories of the future city. This originally undivided episcopal property was portioned out in the course of time. With the creation of the so-called mensa fratrum in the tenth century, parts of the possessions ended up in the hands of the oldest religious communities: the Cathedral Chapter and the Chapter of the Holy Saviour or Oudmunster. They were the first ones to receive together one portion of this property. Probably, the first territorial division took place within the limits of the fortress with the granting of this property.
In the middle of the eleventh century, two new chapters were founded: Saint Peter and Saint John. Moreover, the old Benedictine Abbey of Hohorst near Amersfoort was transferred to Utrecht and became known as Saint Paul's. Later in the eleventh century, Saint Mary's was established. It is likely that all of these new religious communities were endowed with diocesan property. So, from the start these convents had their own estates at their disposal. On these lands the churches, communal buildings and the houses of the clergymen could be built. Furthermore, the estates included lands elsewhere, partly also inside the city limits.
There is quite some confusion over the topography of the area of the future city of Utrecht. The course of the various branches of the river Rhine is particularly under debate. According this study's hypothesis, the course of the Rhine in the eleventh and twelfth centuries stretched from the most southern tip of the city in a wide circle around the east and northern sides of the fortress to the west side, and continued its way in a westerly direction. The river Vecht, that branched off from the Rhine at the southern tip mentioned before, or a little upstream, ran from east to west along the northern limits of the future city area, and bended to the north. It is likely that in the tenth century, a connection was already dug between the Rhine and the Vecht. This canal is part of the present Oudegracht, the main canal in the modern city of Utrecht. The heartlands of the newly established Chapters of Saint Peter and Saint John could be found respectively east and north of the fortress. The lands west of the stronghold housed a secular settlement. The canon law prevailed within the limits of the Church lands.
The secular settlement at the west side was the commercial quarter, called Stathe. This commercial settlement was to become the most important part of the future city of Utrecht. There were also other secular settlements on the Church lands. Little is known on the conditions of the land leases for laymen. It is reasonable to assume that the land was leased out, at least in some cases, on a manorial basis. Furthermore, the bishop probably handed out tenures to free men and newly emancipated serfs in return for an annual levy called tijns. Most likely the manorial obligations were, after their rescission, transformed into such a tijns. It is conceivable that lots of land were freed from all manorial obligations already before the granting of the city charter. This most likely, came about first for the lands of the ruling class; the so-called ouderve.
Several toponyms of the city area still remind us of the agricultural use of the soil. Among these names are terms like eng, brink, kamp and veld. Since the thirteenth century, the premisses are usually referred to as areae or hofsteden. The house itself is named domus or in Middle Dutch husinghe or huus. In sources from that time the current phrase for the house and its premisses was domus et area in Latin or husinghe ende hofstede in Middle Dutch. The so-called cloistral houses, the houses of the canons and prelates belonging to the chapter immunity, were referred to with the additional adjective claustralis in Latin or claustrael in Middle Dutch.
Still in the fourteenth century, several places within the secular territories knew a small tijns of one or a couple pennies that was due on the holiday of Saint Martin (11 November). This so-called huiserventijns had to be paid by all occupants of houses. The levy was imposed by the bishop in the jurisdiction of the episcopal burgrave. Saint Paul's Abbey and the various chapters, with the exception of the Cathedral Chapter, collected this tijns in the areas where they exercised the local or 'low' justice. Moreover, the bench of échevins (aldermen) paid a levy of four pounds to the prevost of the Cathedral. Most of these levies were the remnants of the tijns on premisses and property which were already imposed before the granting of the charter around 1122. The levies were originally collected by the bishop, but because of the division of the diocesan property these rights ended up in the hands of the abbey and the chapters.
This fairly modest levy had a public or statutory character, which means that it was paid as a sign of recognition of the collector's public authority. In most cases, the collector also administered justice in the areas that paid the levies. The jurisdiction was strongly divided parallel to the division of the lands. The inconvenience of this situation initiated a reallocation of the various jurisdictions into more manageable areas. In these areas, the older rights and titles were no longer taken into account, but justice was administered on the basis of general authority. This was the case with the bench of échevins and the local courts of 'low' justice later on in the Middle Ages.
Little is known about the secular jurisdiction in the period proceeding the granting of the city privilege. In the eleventh century the advocacy for the people and property of the Utrecht Church was in the hands of the count who was still in office at that time. This territory probably corresponded with the future rural deanery named Civitas. The combination of the authority of city count and Church advocate concentrated all jurisdiction over laymen and lay territories in his hands. This shows that a higher degree of territorialism in the jurisdiction slowly came about. However, the term justitia at that time covered all of the public responsibilities: administration, issuing of rules and jurisdiction. The jurisdiction took place in the sessions of the thing. A distinction was made between the things that took place on a regular basis, the unordered things, and the ordered things for special cases. In the juridical system that was in vigor after the granting of the charter to the city, we can still encounter the days on which these unordered things were held: the so-called Thirteenth Day (6 January), Low Sunday (first Sunday after Easter) and Saint Lambert (17 September). These dates set the time frames in which the transfer of real estate had to be announced in public.
Law cases pertaining to the 'high' jurisdiction were probably preceded by the count-advocate himself. The 'low' justice that included the jurisdiction on real estate and property was most likely delegated to one or more city sheriffs (i.e. schout in Dutch). In 1081, it seems that there was already a city sheriff in Utrecht. The first échevins (i.e. schepenen in Dutch) are not mentioned until 1122, but probably existed already before that date. It is conceivable that they played a role in the jurisdiction on real estate at that time.
Other courts and benches might have dealt with this jurisdiction as well, like for instance, the court of the burgrave, who exercised jurisdiction in parts of the fortress. Moreover, one or more manorial court benches might have been active, although they did not leave any traces in the sources. Possibly the so-called tijns-court named Onder de Lakensnijders dates from times before the granting of the charter.
It remains a debatable point whether or not the delivery and burdening of property, which were part of the voluntary jurisdiction, took place in court at that time. If this was the case, then it was probably limited to tijns-courts and manorial benches, where the investiture had to be done by the lord. Alodial transactions might have remained extrajudicial.
Jurisdictions: ₒ ₒ ₒ ₒ ₒ ₒ bounds of the local immunities (canon law); ₒ ₒ ₒ ₒ ₒ bounds of the other jurisdictions (secular law).
Local immunities: A. Cathedral Chapter (Dom); B. Oudmunster (Holy Saviour); C. St Peter; D. St. John; E. St. Mary; F. St. Paul.
'Low' courts: a. Dom; b. Oudmunster; c. St. Peter; d. St. John; e. St. Mary; f. St. Paul.
'Tijns'-courts: I. bischop's court; II. burgrave's court; III. court Onder de Lakensnijders; IV. tijns-court de Omloop van Sint-Marie; V. beguinage.
|I. The territory of
the canon law
The immunity of the Utrecht Church, in the general sense of the term, has to be distinguished clearly from local immunity. The latter one originated from the special protection that sacred places enjoyed. This immunity included the church buildings and the adjacent areas as long as they were fenced off in one way or another. In these areas, the administration in general, the jurisdiction, as well as the issuing of new rules were done in accordance with the canon law.
The various chapter immunities are particularly interesting for the jurisdiction on property and real estate. Shortly before the year 1050, when two new chapters were founded, part of the clergy gave up the monastic life and chose to live according to the Aachen rule. This convent rule allowed for the possession of property and real estate within the immunity limits. The houses they owned had to be located within the immunity, fenced off by walls and locks. For that reason the area was called the close or claustrum of the chapter, and subsequently the houses claustral houses. The immunities of the chapter enjoyed the privilege of being free from any secular interference and were subjected to canon law.
The episcopal castle
We have seen that the oldest churches, the Cathedral and Oudmunster, with their adjacent buildings and clergy houses, were located within the limits of the former Roman castellum. The Saint Martin's Cathedral was located in the northern part and the church of the Holy Saviour or Oudmunster in the southwest. The chapel of the Holy Cross lay in between. This chapel most likely corresponded with the church built by Saint Willibrord and originally had been dedicated to the Holy Saviour. The contours of the fortress are known thanks to the excavations carried out near the Cathedral.
Initially, the fortress was large enough to hold all of these churches and their annexes for the clergymen. Since the middle of the eleventh century, when canons started to live in claustral houses, the fortress gradually became too small. This initiated an expansion of the fortress area. A second moat was dug parallel to the original moat at some 25 to 50 meters distance for this purpose. The new moat might have incorporated a ditch or canal that already existed before. It is questionable whether or not the new moat still played a role in the defence system of the fortress. The first quarter of the twelfth century saw the construction of the city wall that contained the area of the entire ancient fortress. This eventually lead to the complete dismantlement of the stronghold.
The castle bridge named Borchbrug, the northern part of the present day Sint-Maartensbrug, gave entrance to the medieval castle. The bridge stretched over the west moat of the fortress. Premisses of laymen could be found in between the west wall and the moat of the stronghold. These lands fell under the jurisdiction of the burgrave. The Borchstraat (Servetstraat), that led to the castle, and its continuation in a northerly direction called the Bisschopsweg, were bordered as well by some settlements excluded from the immunity.
In the twelfth century, the imperial palace was located at the left side of this Borchstraat and at the right side the bishop's house could be found. With the liquidation of the palace in the twelfth century, the premisses of the palace were split-up between the chapters of the Cathedral and Oudmunster. The main building of the palace might have been acquired by the Cathedral Chapter that turned it into four claustral homes. Oudmunster obtained a lot of land behind the main building north of the Cathedral's bell tower. Here, two claustral houses were built. In the year 1179, the sources mention for the first time a parcel owned by Oudmunster on this spot.
The claustral premisses of the Cathedral's Chapter were located in a semi-circle ranging from the northwest to the southeast around the church. In the fourteenth century, the number of claustral houses of the Cathedral amounted to approximately fifteen. An extension of the Cathedral's immunity that dates from a later period, could be found between the present-day Korte Jansstraat and Keistraat.
The Chapter of Oudmunster had a total of eight or nine claustral premisses. Most of the claustral homes of Oudmunster were arranged also in a semi-circle around the church, stretching from the southeast to the east.
In general, the bishops' fortress of Utrecht knew a very regular layout, with the palaces of the emperor and the bishop bordering each side of the entrance road. Furthermore, the immunities of the Cathedral and of Oudmunster divided the area diagonally. However, the Cathedral's Chapter took most of the land.
The younger local immunities
The three younger chapters, Saint Peter, Saint John and Saint Mary, were founded on spacious lands outside the former fortress. With the completion of the city wall in 1122, these chapters were included in the city area as well. The claustral houses of these chapters were grouped around the various churches and convent buildings. In the fourteenth century, Saint Peter and Saint John each had about thirteen houses; Saint Mary seventeen.
The immunity of Saint Peter lay right to the east of the fortress. Here the houses stood in a semi-circle north, south and east of the church. A former branch of the Rhine, that at that time ran through the city, enclosed the immunity to the north and east sides. A ditch was probably dug to fence off the immunity to the south, when the chapter was founded. To the west of the church the chapter's limits corresponded with the eastern city moat.
Saint John was the only chapter that was located north of the Rhine. The houses were situated on wide and long parcels to the south, east and west of the church. In 1247, the chapter granted the prevost's premisses south of the Church to the Franciscans for the construction of a convent.
At Saint Mary's, five houses could be found both at the south and at the north side of the church. Furthermore, there were some premisses at the west and east sides. It seems that four smaller lots were already added to the original territory of the immunity before the year 1300.
Apart from the immunities mentioned above, there were extensive lands of the various convents in Utrecht that were not occupied by regular houses, and, for that reason are not included in this study. Considering the number and size of these immunities that fell under the canon law, it can be concluded that large territories of Utrecht were withdrawn from the secular authorities.
The institutional development of the chapter immunities
Ever since the eleventh century, the chapters lived by the so-called Aachen rule. However, this rule only included a few stipulations concerning the houses of prelates and canons. In 1209, a synodal statute ruled that canons were required to live in claustral houses. Initially, though, a large part of the clergy might have continued the communal life.
The chapters drew up their own statutes concerning the administration and management of the claustral houses and their premisses. The main rule was that the claustral houses were reserved for the prelates and canons of the chapter. The owners of the claustral houses were free to alienate and transmit their property, but in principle, every house had to end up again in the hands of a fellow canon. The chapters did not strictly observe this rule and starting in the fourteenth century, claustral houses could be inhabited by clergy or even laymen not belonging to the chapter community.
Initially, it appears that the claustral houses and their premisses were considered to be two separate entities, as was the case in secular territories. The chapter only granted the house in order to keep the land itself as an integral part of the immunity. Gradually this distinction was lost and the sources started to mention the house and its premisses as an indivisible unity. The change from wood to stone as a construction material most probably brought about this process. Both the house occupants, as well as the chapters, would claim the ownership of the same houses and premisses. The terminology used in the sources is very irregular. Notions stemming from the canon and roman law were mixed with local legal concepts. For that reason it is better not to apply modern legal terminology to the claustral houses, nor to link their status to any other medieval legal concept. It makes sense to consider the claustrality as a separate legal conception that could differ in regard to details with the various chapters. Due to the large degree of autonomy enjoyed by the chapters, differences in the management and administration of these claustral houses existed.
The jurisdiction, administration and the issue of rules concerning the claustral territory as a whole, and the claustral houses and premisses in particular, were in the hands of the chapter. The chapter was the community of the voting canons that regularly met in chapter meetings. The prevost chaired these meetings. Since the thirteenth century, when the prevost was no longer part of the chapter, the dean took over this role.
Usually the chapters held the assertion of their immunities very dear. Conflicts, that arose amongst the chapter canons or with the city or private people, were generally resolved by means of arbitration. Sometimes the bishop also played a role here. Commonly these conflicts were not allowed to develop into a direct confrontation between canon and secular law. Even though there were discords at times, the chapters managed to maintain the integrity of their territories throughout the centuries. In some cases they even managed to expand their immunities. Only Emperor Charles Quint succeeded in breaking to some extent the local privileges of immunity, after in 1529 the bishop had given up his secular authority in the Sticht of Utrecht. Not until 1618, the claustral premisses were formally put under the jurisdiction of the Utrecht bench of échevins.
II. The territory of the secular law
The rights on real estate and property after the granting of the city charter
The granting of the city charter in, or slightly earlier than 1122, loosened the ties between the city with its inhabitants on the one hand and the common secular law on the other. Probably, the enfranchising of the city led to a new statute of the rights and titles on real estate and the jurisdiction regarding this property. It is likely that the laymen obtained free disposition of their lands. Well-to-do people of standing, the so-called meliorate, might have had free disposition of their lands before that date. These lands were called ouderve in Middle Dutch. Some of the goods of the meliorate evolved to the oldest heir and could not be inherited by the collateral family line. In the course of the Middle Ages, the ouderve gradually disappeared. However, by applying the fideicommissary system, which appoints the heirs, the same result as with ouderve could be reached.
The granting of the city charter marked the end of an era in which the lessor maintained full disposal over this land and in which the lessees were submitted to the jurisdiction of the giver. The jurisdiction became set up on a territorial basis. This implied that from then on, the lessee of the land submitted to the jurisdiction of the one that held the juridical authority in the area in which the land was situated.
It is likely that the huiserventijns, mentioned above, was abolished when the city of Utrecht was enfranchised. In this way, municipal alodium or free property came into being. The Cathedral Chapter might have changed the tijns that was collected by the prevost into a lump sum that had to be paid yearly by the bench of échevins. In doing so, urban alodium was created.
The Chapters of Oudmunster, Saint Peter, Saint John, Saint Mary, and Saint Paul's Abbey continued collecting the old tijns in some cases. However, this did not imply any special rights for the collector, nor obligations for the payer, and was comparable to a regular ground rent.
In the twelfth century, a legal concept came into existence that ever since the fourteenth century in Utrecht became known as the lease for perpetuity or ewelike erfpacht. This type of lease signified that the lessor conveyed his land into lease for perpetuity. In such a way the lessee obtained full disposition of the land and could, like the owner of alodial property, without consulting the lessor, sell or mortgage the goods or pass the land on to his heirs. Initially, the ewelike erfpacht, or lease for perpetuity, was only used by churches and convents. Later on, in the thirteenth century, it also became popular with laymen. The ewelike erfpacht gave the lessee a right that resembles in many aspects the rights and titles of a property owner in the modern sense. The lessors only kept the right to collect a certain levy on these leases. Eventually, most of the lessees did become property owners in the modern sense. In some places the principle that the land was submitted to the jurisdiction of the lessor survived till after the enfranchising of the city. In the tijns-bench De Omloop van Sint-Marie and in the bench Onder de Lakensnijders the legal authority of the lessor was still present. Conveyance and mortgaging of property had to be done in the tijns-court of the lessor.
The fiefs held a special status. In the city of Utrecht there were quite some fiefs that were granted by the bishop, the count of Holland, the prevost of the Chapter Oudmunster and the abbot of Saint Paul's. Here the jurisdiction of the lord that had granted the fief prevailed. In some cases, though, the administration of justice had been granted with the fief. So, they actually had their own jurisdiction. This is the case with the court of the burgrave and the court called Onder de Lakensnijders. When the jurisdiction was not included with the fief, the land fell under the juridical authority of the local territorial court. This could be the bench of échevins, the court of the burgrave or one of the 'low' courts. In the course of the thirteenth century, most of these fiefs became alodium of the holders.
The jurisdiction in real estate cases in secular territories was taken care of by the municipal bench of échevins. They administered justice in both voluntary and contentious cases. In the late Middle Ages, the voluntary justice which included the conveyance and mortgaging of property, was administered by the bench of échevins, the court of the burgrave, the tijns-courts Onder de Lakensnijders and the Omloop van Sint-Marie, and the 'low' courts of the chapters and Saint Paul's Abbey. Also ecclesiastical judges played a role here.
The court of the municipal bench of échevins
The most important body in the city of Utrecht in the field of real estate cases was the municipal court of échevins. First, the échevins had their seat west of the Buurkerk, but ever since 1344, the court was located at the Plaats (the southern part of the present-day Stadhuisbrug). The court consisted of at least one city sheriff and at the most twelve échevins. The city sheriff might have been mentioned in the sources already in the last quarter of the eleventh century. In the beginning the city sheriff was looked upon as the representative of the bishop, the lord of the city. Already in the fourteenth century, this officer was more and more considered to hold a municipal office. Since the thirteenth century, the city sheriff had to be a citizen of Utrecht. The échevins are mentioned in the sources for the first time in 1122. They were the representatives of the community of the local jurisdiction, even though they were initially appointed for life by the bishop. Starting in 1305, the échevins were elected by the city council for a period of one year. After that, they were not eligible for a complete year. So, the office could only be held every other year. In the "off" year, they acted as so-called old échevins. Together with the new échevins they made up the judicial tribunal of, what was called, the new and old échevins, that dealt with the more important cases. The échevins had to be members of the meliorate; the wealthy and most powerful citizens of Utrecht.
The authority ratione loci of the municipal court of échevins included the city area within the moats, as it was since 1122. The immunities that were submitted to the ecclesiastical jurisdiction were not included. The territories where other courts administered justice, such as the 'low' courts and tijns-courts, were also not included. However, from early on the court of échevins acted as a court of appeals for the 'low' justice. From the thirteenth century on, clergymen, noblemen and knights were ratione personae submitted to the jurisdiction of the court of échevins as far as cases regarding property and real estate were concerned. Ratione materiae the échevins held the full jurisdiction in real estate cases, but the city council could interfere wherever it was deemed necessary.
Even though the judicial conveyance of landed property probably did not become obligatory till the fourteenth century, the official promulgation of the conveyance seems to be much older. The time frames in which these promulgations had to take place were set by three dates: Thirteenth Day (6 January), Low Sunday and Saint Lambert (17 September). This set of days most likely originated from the dates of the so-called unordered things from Frankish times. Another reminiscence of the Early Middle Ages is the proclamation of the peace ban, occasionally mentioned in the Utrecht sources.
The deeds throw a much better light on the working procedures of Utrecht's municipal échevins than the legislative sources. Two thirteenth century deeds already throw some light on their activities. The charters show that the city sheriff acted as the president of the court. Through continuously asking questions he led the court session and eventually demanded a verdict from one of the échevins. Then, the rest of the échevins gave their support for this verdict. From the deeds it also becomes clear that the voluntary cases, that are important for conveyance and mortgaging of real estate, took place in this form.
As far as the contentious justice in real estate cases is concerned, the eviction procedure is documented the best. Here the property was seized and given back to the creditor to pay off debts and the costs. In the fourteenth century, in a limited number of cases the so-called zeventuig was still active. The zeventuig was a hearing of seven neighbour witnesses that had to give a binding testimony on the precise limits and borders of fields and lots of land. After the fourteenth century, the zeventuig is not mentioned anymore. The right to destroy the house of a murderer, the woestingsrecht, was already abolished in 1249.
The jurisdiction in voluntary cases is well known by the vast number of deeds that have been preserved, dating from the thirteenth century and on. As has been explained earlier, the public promulgation of conveyance of real estate had to take place on a certain set of days. These promulgations were registered from at least the second half of the fourteenth century. In Utrecht a warranty period of at least one year and one day was in effect. During this period the seller had to indemnify the buyer from third party claims. There is no proof for any existence of the so-called naastingsrecht. This right entitled the neighbours or family members to claim the land, that was sold to a third party, for the same purchase price. However, in some deeds regarding hereditary land leases, the right of pre-emption under certain conditions was sometimes agreed upon. Possibly, a deed of 1165 proves the necessity for approval of family members in selling real estate. In later ages this approval is not mentioned anymore
Two types of deeds concerning legal action pertaining to real estate can be distinguished: a municipal deed and an échevins' deed. The first one only had the city's great seal, while the latter was authorised with the seals of the city sheriff and at least four of the échevins. It is possible to recognize a certain pattern in the use of the seals. Hereditary leases were granted with the great seal. Deeds concerning judicial allowances were granted with the seals of the city sheriff and the various échevins. Starting in the fourteenth century, the municipal great seal is used more often. Apart from the register of promulgations, no records were kept of the deeds concerning conveyance or mortgaging of real estate. Only in 1552, did the city of Utrecht start to do this by order of Charles Quint.
In this way, an uniform system of bookkeeping of the real estate in the city was developed by the bench of échevins in the course of the fourteenth century. Judicial conveyance and mortgaging of property seem to have become obligatory. However, no records were kept of the charters and deeds issued. The formation of one single comprehensive and consistent system of land registration was obstructed by the presence of various jurisdictions within the city limits that dealt with voluntary and contentious cases concerning real estate.
The 'low' courts
The five Utrecht chapters and Saint Paul's Abbey administered 'low' justice in considerable parts of the city. Jurisdiction in real estate cases was included in the 'low' justice. Looking at the seats of these benches, it is striking that most of them were located in the eastern part of the city, except for Saint Mary's. The benches of Saint John, Saint Peter and Oudmunster were all adjacent. They covered a large part of the area east of the so-called new canal that was dug between 1390 and 1393 (i.e. the present day Plompetorengracht, Drift, Kromme Nieuwegracht and Nieuwegracht). The 'low' court of Saint John covered the northeastern part of the city, east of the beguinage and Saint John's immunity. Saint Peter's bench included the premisses beyond the Kromme Nieuwegracht. A reasonable case could be made for the assumption that the landed property and jurisdiction of Oudmunster extended as far as the territories beyond the city moat and for that reason dated from times before the moat was dug in 1122. Most likely, this was also the case with the lands of Saint John. The jurisdiction of the 'low' justice of Oudmunster included the area east of the Nieuwegracht, starting at the fifth parcel of the Pausdam up to the present-day Nieuwegracht number 70. The inner-city section of the area behind, the Boeltjeskamp, was only parcelled out between 1367 and 1373.
The bench of Saint Paul's Abbey was situated between the Nieuwegracht and the Lange Nieuwstraat, south of the abbey. It is likely that parcels at the south-side of the Hamburgerstraat, at the Nieuwegracht and at the Nieuwstraat, were originally included. Presumably, the jurisdiction stretched as far as the block between the Groenestraat and the ABC-straat.
The 'low' jurisdiction of the Cathedral originally consisted of one single parcel only. Up until the fourteenth century an orchard was included in this lot of land. The parcel incorporated the numbers Nieuwegracht 72 through 88. Lengthways, the Keukenstraat was laid out on this land and at both sides of the street small lots were parcelled out.
It is not impossible that the Cathedral Chapter had administered justice through its prevost in the territories where it also had levied tijns. This was the collective tijns, mentioned before, that the échevins of the city paid to the prevost of the Cathedral. By collecting these levies themselves and paying them as a lump sum to the prevost, there presumably came an end to the actual jurisdiction of the prevost in these lands.
The 'low' court of Saint Mary was located between the bishop's castle and the immunity of the chapter, and bordered the merchants' settlement Stathe on the north. It contained the area enclosed by the Mariastraat, Steenweg, the Buurkerkhof and the Zadelstraat.
In the fourteenth century, the Chapters of the Cathedral, Oudmunster, Saint Peter and Saint Mary acted as seignorial lords. At Saint John's, the prevost was the seigneur and at Saint Paul's the abbot acted as such. It is known, that originally the prevost of Oudmunster and Saint Peter themselves administered justice. However, in the thirteenth century they had to hand this authority over to their chapters.
The seigneur appointed a sheriff who acted as their representative in court. Quite often though, the camerarius, the head of the financial administration of the chapter, was also present in court.
The sheriff did not belong to the familia: the group of permanent staff of the chapter or abbey. The sheriffs were usually in office for quite a long time. They were sworn in by the lord and could be sheriff of more than one court at the same time.
The persons summoned to give their verdict in the 'low' courts were referred to with various terms: fellow tijns-payers (tijnsgenoten), neighbours (buren), neighbourhood councillors (buurraden) or échevins (schepenen). The fellow tijns-payers probably held some leases from the chapters or abbey. The term neighbours is more general and refers to citizens that lived in the same jurisdiction and were allowed to appear in court because of their rights on property titles. The buurraden were elected representatives of the neighbourhood. In this way not all of the neighbours had to come to court. Jurisdiction with a limited number of permanent jurors instead of an ever changing group of neighbours and tijns-payers was put into force at Saint Mary's. Since the beginning of the fourteenth century, sworn jurors held the offices of échevins at this chapter.
The sheriffs usually acted as the presidents of the court in name of the seigneur. The lords hardly ever presided over the courts themselves. However, sometimes the camerarius represented the chapter as president of the court. In some cases the legal actions were reported to the court by the seigneur and subsequently recorded by him in an official deed.
The court session took place in 't gerechte, at the court, which most likely was a fixed place. Only for Oudmunster the exact spot where these court session took place is still known: present-day Nieuwegracht 22.
The number of deeds that can be traced varies greatly per court. All of them dealt with conveyance or mortgaging of real estate. The oldest ones date back to the last quarter of the thirteenth century and the youngest ones from the start of the fifteenth century. The judicial rules followed by these 'low' courts were probably similar to the ones in use at the municipal court of échevins.
Already at the beginning of the fourteenth century, the city tried to curb the jurisdiction of the 'low' courts. By the middle of the fourteenth century, the jurisdiction of the 'low' courts had to face stiff competition from the municipal court of échevins. In 1414 the bishop complained that the functioning of the 'low' courts had been obstructed by the city for a long time. After that the 'low' courts were never set up again. The sheriffs of the chapters and of Saint Paul's Abbey kept the right to distrain property, though, in their former jurisdiction. Real estate could be seized by distress to obtain satisfaction of a claim. It is probably for that reason that ages after the 'low' courts had ceased functioning, the jurisdiction under which a good fell was still mentioned.
The burgrave's court
The court of the burgrave was a separate and independent bench. He held his office as a feudal fief from the bishop and administered justice in cases of secular real estate within the castle. His jurisdiction included parcels at the Vismarkt, Lichte Gaard, Donkere Gaard and possibly the Servetstraat. However, the jurisdiction was further limited by rights of third parties. For instance, the parcels of Oudmunster at the Donkere Gaard did not need to be conveyed at the burgrave's court, but could be dealt with by the municipal court of échevins. By the fourteenth century, it seemed like the latter court had taken over most of the cases the burgrave used to deal with before.
Presumably, the burgrave was involved personally in the court sessions. However, in later ages he was represented by his sheriff. This officer administered justice with the tijns-payers and neighbours. Judicial actions concerning real estate had to be reported afterwards to the municipal court of échevins, where a deed was also issued.
Apart from this jurisdiction, the burgrave may have exercised the right to demolish unauthorised houses, to determine parcels' limits and to split up parcels. However, also in respect to these rights the burgrave faced competition from the municipal bench of échevins. Eventually, the decisions of the court of échevins concerning parcel limits were generally considered lawful, even when the burgrave was not present.
The jurisdiction of the Utrecht burgrave came to an end when the goods of burgrave Henry of Brederode were seized because of his involvement in the Dutch Revolt of 1568.
In the secular jurisdiction of the city of Utrecht a few so-called tijns-courts could be found. They were located in the oldest part of the city close to the bishop's castle. The court Onder de Lakensnijders of the former city count was insignificant and only consisted of a few parcels to the northwest of the former episcopal castle. Of more importance was the so-called Omloop van Sint-Marie, which bordered the western castle moat and the jurisdiction of the 'low' court of the same chapter.
The origin of the tijns-court Onder de Lakensnijders can be traced to the manorial goods of the Utrecht count-advocate, who in his turn had granted the land as a fief. After the municipal county came to an end in 1220, the former city count, Albert of Cuijk, kept his fiefs. Among these were the lands of the later jurisdiction Onder de Lakensnijders. In 1327, Otto of Cuijk transferred these rights to the count of Holland. Since 1333, these goods are referred to in the sources as the tijns and the court Onder de Lakensnijders. Utrecht citizens and noblemen were sub-vassals of these goods. The tijns and the court met their end in 1568 when the goods of Gerrit of Renesse, who was the tijns-lord at the time, were confiscated because of his involvement in the Dutch Revolt.
The jurisdiction of this court was very small. It only included the parcels Choorstraat 11 through 15 and across the street numbers 14 through 20. The latter probably stemmed from the front yards of the houses at the odd side of the street, as can be deducted from the cellar plans and the ownership of these premisses in the sixteenth century.
Justice was administered by a sheriff, who represented the tijns-lord and the neighbours. The sheriff had to report the judicial actions over which he had presided to the municipal court of échevins, just like was the case at the court of the burgrave. Here an official deed was issued. In the sources a few cases can be found in which the tijns-lord himself issued the deed. However, in these cases the court of échevins still issued an official deed in which the full text of the first deed was included.
The tijns-court named the Omloop van Sint-Marie dated back to the end of the twelfth century and found its origin in a conflict between the city of Utrecht and Saint Mary's Chapter. Geographically, this jurisdiction probably included a large parcel that extended from the city moat to the immunity of the Saint Mary Chapter. Later on in the Middle Ages this area turns out to be located between the Zadelstraat and the Boterstraat. It also included the premisses Lijnmarkt 2 through 10.
All the land in this area, with the exception of the public area of the Mariaplaats, was given out as hereditary leases. The tijns that had to be paid was considerably higher than the older tijns-rents. They more or less equalled the perpetual rents that had to be paid for premisses of houses. The real estate in this jurisdiction was submitted to the vorderlick erfrecht, in which system the oldest heir receives all of the inheritance. The system of vorderlick erfrecht was laid down in writing in an agreement between the two tijns-lords: the city and the chapter.
Conveyance of real estate within the limits of this jurisdiction was dealt with by the lords of the tijns-court. The camerarii of Saint Mary's and the city acted as lords of this tijns-court. The tijnsgenoten, mentioned above, made up the jury. The office of sheriff did not exist in the Omloop van Sint-Marie. The municipal bench of échevins acted as the court of appeals for this tijns-court.
It is likely that more of this type of tijns-court existed in the city of Utrecht than the ones dealt with here. However, they might have passed into oblivion because particular sources were lost in the course of the centuries. This could easily be the case with smaller courts, comparable to that of Onder de Lakensnijders.
A characteristic of all the tijns-courts is that the land within the jurisdiction was let out in hereditary leases; except for the public places. The tijns-rents were considerably higher than the old tijns on premisses for houses (huiserventijns). They amounted to at least several shillings a year.
There was a difference between the tijns-court Onder de Lakensnijders and that of Saint Mary's, as far as the conveyance of real estate is concerned. At the Lakensnijders-court the property was transferred directly to the obtainer, while at the Omloop van Sint-Marie this was done through the intermission of the tijns-lord. Moreover, at the Lakensnijders the acts of the court were reported to the municipal bench of échevins, which then issued an official deed or charter. This was not the case at the Omloop van Sint-Marie, where separate transfer records were kept. The oldest records that have been saved date back to the first half of the sixteenth century. The tijns-court Onder de Lakensnijders vanished at the end of the sixteenth century. The bench of the Omloop remained in existence until 1811.
It is not unlikely that the differences pointed out here are caused by the fact that the tijns-seigniory Onder de Lakensnijders was in the hands of a lay person, while the Omloop van Sint-Marie was partly owned by a religious body. In this respect, the similarities between the bench Onder de Lakensnijders and the court of the burgrave are worth mentioning. On the other hand, the Omloop van Sint-Marie was a very particular type of jurisdiction within the city of Utrecht.
Also the beguinage made up a separate jurisdiction in Utrecht. The beguines stood midway between the clergy and the laymen. Just like the canons, they were allowed to own houses. This property was administered according to a special statute of the secular law. The oldest statute that has been handed down dates from 1284. It stipulates that in case a beguine died without leaving a last will, her house fell to the beguinage. This rule, however, was not observed anymore at the beginning of the fifteenth century. At that time everyone could own houses and their premisses in the beguinage, on the condition that the actual residents were unmarried women or widows who observed the rules of the beguinage.
The beguinage was probably founded in the middle of the thirteenth century on a lot of land that was let out as a hereditary lease by the Chapter of Saint John. A chapel was also founded on this land. Remains of the chapel can still be found at the house at the Wijde Begijnestraat 112-114. The limits of the beguinage can be traced easily with the exception of the border at the east-side. The area was confined to the north by a wall that stood directly behind the city-wall, and to the south-side by the Voorstraat. In the east part of this present-day street, near the Wijde Begijnestraat, a gate was located. At the west-side of the beguinage, a wall ran from north to south, almost as a continuation of the west border of Saint John's immunity. In this wall a second gate could be found right across from the Breedstraat. There is no doubt that also at the east-side there has been a wall marking a border that cannot be traced anymore between the Wijde Begijnestraat and the Plompetorengracht. A location on the outskirts of the city was quite common for beguinages. The same is true for the situation of the houses around a chapel and a small square.
There are no sources describing any contentious jurisdiction concerning real estate of the beguinage left. However, there are some deeds of juridical transactions dating from the fifteenth century that took place before the mistresses of the beguinage. These actions pertained mainly to the bequest and conveyance of real estate. In a limited number of deeds, the so-called beguine-masters were also mentioned next to the mistresses of the beguinage. These beguine-masters were appointed by the city. Since the fifteenth century juridical actions concerning the beguinage took place before the municipal bench of échevins.
To end this kaleidoscope of jurisdictions in the secular territories of the city of Utrecht, the church judges should be mentioned. Up to the beginning of the fourteenth century, these judges dealt with quite some real estate cases, but in the course of this same century they lost ground to the municipal bench of échevins. Justice pertaining to cases in which clergymen, church bodies, or property belonging to the Church was involved, was mainly administered by the bishop's official principal. To a lesser degree the officials of the archdeacons also participated in this jurisdiction. Among the latter the prevost of the Cathedral was the most important, because his district included the city of Utrecht. Sometimes real estate cases were judged ad hoc by papal judges with delegated authority.
The grants of domains and immunity the Utrecht Church received in the Early Middle Ages determined to a large extent the developments in the administration of justice concerning real estate later on. The original lands of the Utrecht Church made up the basis of the later goods of the five chapters, Saint Paul's Abbey and of course the bishop. Two separate juridical spheres of influence came into being in the city area: the lands submitted to canon law and the territories submitted to secular law. Within the area of the canon law, the legal concept of claustrality came into existence within the chapter immunities. This concept provided a framework for the management of claustral houses and premisses that came under the jurisdiction of the five chapters. Only with the Reformation did this separate development come to an end. Thus all of the jurisdictions were submitted to the legal authority of the municipal bench of échevins.
Within the territory of the secular law, the granting of the city charter in 1122 marked the beginning of geographically delimited jurisdictions with a general authority that included 'low' justice. Until then, the administration of justice pertaining to real estate had been based on land titles and the rights with which they came. Initially, the 'low' courts of the chapters and Saint Paul's acted as benches for cases in first instance. In the rest of the city the municipal bench of échevins, which already had the 'high' jurisdiction in all of the city, took up this responsibility. At the beginning of the fifteenth century, the 'low' courts lost ground to the bench of échevins and eventually ceased to exist. In this way, the latter court ended up holding all of the 'low' juridical authority in the city of Utrecht. The only exception was the so-called tijns-courts that still dealt with real estate cases in their territories. The Omloop van Sint-Marie continued its existence until 1811.
The study at hand puts a strong emphasis on the geographical component of research in the field of legal history in general, and research on the juridical aspects of real estate in an urban environment in particular. In order to interpret the sources correctly, it is important to analyse the legal relations in the territory where the goods were located, and especially the jurisdiction to which they were submitted. Ample attention should be paid to the public and private aspects, and their mutual relationships that played a role in the property rights and titles. Although this distinction between public and private aspects does not always become clear from the terminology used, this difference did exist in actual practice.
Thus, the distinction between the territories of canon and secular law turned out to be of eminent importance. Striking in this respect is the mix of canon, roman and indigenous legal notions that can be found in the territory of the secular law, as well as on the Church lands. For instance, municipal bye-laws sometimes were applied within the chapter immunities and the phraseology used in the deeds concerning claustral houses also included numerous indigenous elements.
As could have been expected in a city as old as Utrecht and with a long pre-urban history, the rights and the jurisdiction concerning real estate were very complicated and diverse. For that reason the process of creating unity in this field was a lengthy and difficult one. Eventually, it was only the introduction of the French legal code in 1811 that succeeded in establishing the legal unity for all of the city of Utrecht. This study attempts to sketch in broad outline this development from diversity to unity. Let it encourage others to study aspects of this process in more detail.
A sensible comparison to developments elsewhere can only be made after this type of research has been done in other cities. In a way it is striking how little research actually has been carried out in this respect. Possibly, the labour-intensive and detailed character of this type of study has scared off researchers. However, if there are ample sources available, as is the case in Utrecht, a study of the jurisdiction on real estate can yield interesting results. Such an analysis is not only interesting from a legal history point of view, but also for the understanding of the topographical history. Moreover, the composition of a pre-cadastral atlas, that should be the basis of every study in this area, offers a realm of opportunities for further research, for example, in the field of economical and social history.
Translation: André and Pamela Koch-Twigg
© 1994-2017 C.J.C. Broer en M.W.J. de Bruijn. - Hier gepubliceerd 19 november 2014; laatst bewerkt 2 oktober 2017.