Alternative dispute resolution before it was even a thing

Disputes Over Taxes (Tithes and "Cijnzen") Between Thorn Abbey and Others, 1265–1300

Introduction

The conflicts^{of the 13th century} often revolved around land (ownership). The properties of Thorn Abbey were granted for use in various ways. In addition, a levy—a kind of tax—was imposed, which in principle amounted to one-tenth of the (grain) yield from the property in question. There were also levies (tithes) on lambs, foals, and piglets. In this way, the abbey secured a considerable income.

The relationship between the landlord—in this case, the abbey—and the tenant was governed by a contract that required the tenant to pay rent, “cijns” (annual dues in the form of money or poultry), and “keurmede” (inheritance tax in the form of a cow or a horse). The “cijns” generally applied to land, but could also apply to other property, such as a mill. While the various taxes were initially paid in kind, they were later—especially from the ^{16th century onward—paid in cash.}

Disputes over levies (tithes, interest, and taxes) were commonplace. The documents bear witness to this. It is striking that these disputes were regularly submitted to “impartial arbitrators” and “wise and discerning” men (Documents Nos. 38 and 39). An out-of-court dispute resolution avant la lettre! The parties then promised to “accept, approve, and comply with the decision of these arbitrators without violation, ” under threat of a fine to be paid by the non-compliant party to the party complying with the decision.

Who were these "honorable men" who were called upon to serve as arbitrators, and why were they chosen? Where did the disputes arise, what were they about, and how were they resolved?

An archdeacon and bibliophile scholar as arbitrator

The earliest records of arbitration decisions—at least in the documents of Thorn Abbey—date back to 1265 (Document No. 21). In a dispute between the abbey and the archdeacon (head of a deaconry) of the Bishop of Liège, Engelbert van Isenburg, over the tithes of Mertersem (Princenhage near Breda), Burgst (north of Breda), and Overveld (near Etten), the aforementioned Engelbert and a certain Reinier acted as arbitrators. The former, as the bishop’s deputy, stood at the head of the Archdiocese of Kempenland (to which the entire area around Breda belonged) and was himself involved in the conflict; the latter is known as the provisor (legal advisor) to the Bishop of Liège and as a scholaster (head and teacher at the cathedral school of the Cathedral Chapter of Our Lady in Tongeren). While nothing is known about Engelbert van Isenburg, we know a little more about the latter. He visited Thorn Abbey in 1262 (Document No. 17) and determined that the income of the canons (priests) was too meager to support themselves. He therefore ordered that, as long as the rectory of Baarle remained vacant, they should take possession of the tithes of that parish. We also know from Reinier that he was a bibliophile and owned an extensive and very valuable collection of books, as evidenced by a will dated July 1267.

Engelbert’s involvement apparently did not stand in the way of a well-considered decision by the arbitrators. On the matter of the tithes from Mertersem, the arbitrators reached a compromise. They decided that the pastor of Gilze would receive the tithes from the lands in that parish as usual. In addition, he was also granted the right to the tithes in Burgst and Overveld, insofar as these were located within the municipality of Mertersem. The pastor of Gilze had no need to worry about the future, for he was assured that the income allocated to him “would be incorporated into the tithes of the parish of Gilze in perpetuity.” The remaining tithes of Mertersem, according to the arbitration ruling, “shall be ceded without objection to increase the prebends (income) of the canons and canonesses of Thorn.”

They were disadvantaged by the ruling because they lost part of their taxes (tithes) in Mertersem. However, on the advice of "wise men," they eventually submitted completely.

A colorful crowd...

Between 1265 and 1300, a diverse group of arbitrators appeared, with the abbess and the convent always acting as parties. The other parties were mostly land users or tenants, but also included monasteries, parishes, knights, and on one occasion even the Duke of Brabant. While in the case of the Mertersem tithes the assistance of high-ranking ecclesiastical administrators was sought, in later cases it was primarily knights and ministerials who acted as mediators. Canons (including those from the Saint Lambert Chapter in Liège and the Chapter of Our Lady in Maastricht), nobles, and lay judges also appeared regularly. In one case, the advice of the cellarer of the Val-Dieu Abbey was even sought (Document No. 44). The assistance of arbitrators was sought at the request of both parties to the conflict, but this was apparently not always a spontaneous action; rather, it more frequently occurred “at the instigation of honorable people” (Documents Nos. 37 and 38).

It appears that not only did the nature of the position influence the selection (preference was given to individuals with knowledge and experience), but that the parties also sought suitable candidates from a specific personal perspective. The search took place among friends and acquaintances. A dispute in 1273 between the abbess and the abbey on the one hand and Prince Wilhelm von Horn on the other confirms this theory (Document No. 39). It is explicitly reported that, at his request, Lord Willem was represented by the knights Hendrik van Baexem and Marsilius van Berg. It can be assumed that they belonged to his circle of acquaintances. The abbess and the convent also likely chose people known to them. They selected clergymen, namely the Liège canons Jan van Rennenberg and Gijsbert van Bruchausen.

The matters presented—insofar as they are described in the documents—concerned, without exception, ownership arrangements and the associated revenues. Sometimes it suffices to say that they concerned “various matters and points of contention.” The cases provide a clear geographical picture of where the abbey held properties and thus had interests: Princenhage (or Mertersem), Etten, Gilze, Baarle (all near Breda), Ubach, Bergeijk, and Neeroeteren. There is one exception to the rule that the disputes were mainly settled “abroad”: the case of the pastor of Thorn, Jan van Baexem, against the abbess and the convent of Thorn.

Father Johannes von Baexem vs. the Abbey

In the 1280s, a controversy arose between Abbess Guda van Rennenberg and the Abbey, on the one hand, and the pastor of Thorn, Jan von Baexem—who was also the “permanent vicar” (permanently appointed pastor) of Oirschot—on the other (Documents Nos. 54 and 55). This was a conflict that went beyond the land issue. One point of contention concerned the rights to the novalzehenten (taxes on new harvests or newly cultivated land) in Thorn, while other issues revolved around whether the vicar could automatically claim a right to the abbey’s canonry and the associated benefices (income). In addition, there were disagreements regarding the rights and duties of the parish, which had long strained relations with the abbess and the convent. As a compromise, the abbess and the abbey succeeded in persuading the parish priest to agree to a settlement in advance. This provided that two-thirds of the new tithes would go to the abbess and the abbey and one-third to the parish, in exchange for the annual receipt of ten bushels of rye and the same amount of oats. This was subject to the condition of papal or other (higher) confirmation (Charter No. 54).

The dean and the cantor (lead singer) of the Maastricht Chapter of Our Lady, Alexander and Hendrik van Houthorne, respectively, were appointed as arbitrators. (Documents Nos. 53 and 55). They rendered their judgment in 1287, “after having deliberated thoroughly, studied the compromise, sought the advice of legal scholars, and done (everything) correctly.” Pastor Jan relinquished the canonry of the abbey, which was not automatically linked to the parish office. Otherwise, the ruling allowed both parties to collect both the old and the new tithes on the fields where they had previously done so. However, two-thirds of the tithes collected on the new fields in the future were to go to the abbess and the abbey, and one-third to the parish. In establishing this arrangement, the mediators relied on “the custom hitherto followed by the Cathedral of Liège, ” to which they had been referred by several legal scholars. The Cathedral of Liège refers to the Cathedral of Saint Lambert.

The responsibilities of the abbey and the parish regarding the celebration of Masses for the dead and the inclusion of Mass intentions in the Eucharistic prayers were also clarified. Apparently, it had become customary for parishioners to bypass the parish priest and the other priests in the parish for this purpose and instead seek out the chaplains at the altars of the abbey church. This resulted in the parish losing considerable income. To accommodate the parish, the arbitrators stipulated “that the chaplains at the altars (of the abbey church) may not accept donations from parishioners on the four major feasts, the thirty-day commemorations, and the Masses for the dead, as well as special Masses, unless it had been previously established that the parish priest or his deputy was satisfied with these donations.” Finally , rules were established regarding the status of the abbess’s and the convent’s staff. This staff did not belong to the parish and was exempt from the parish’s obligations if they resided within the convent’s immunity (legal seclusion).

The arbitrators’ authority was once again considerable, for both Abbess Guda van Rennenberg and the convent, as well as Pastor Jan van Baexem, asked the Bishop of Liège, Jan van Vlaanderen, on October 1, 1287, to ratify the rulings (Document No. 58). Abbess Guda van Rennenberg and Pastor Jan van Baexem were apparently not satisfied with the formalization of their agreement regarding the tithes in Thorn and concluded a new agreement in 1299. Incidentally, the tithes in Beersel, Baexem, Haler, and Stramproy were also included, so that these too were given a firm formal basis (Document No. 70).

In conclusion

It is striking how frequently the method known as mediation was used in the settlement of disputes. Was the reason for this a lack of (legal and other) knowledge and authority on the part of the regular judicial authorities? Did acceptance increase when judgments were proposed by canons from Liège or Maastricht, or by knights or ministerials from the Ubach region? We can only speculate on this. The fact is that people in the Middle Ages were always looking for practical solutions. The settlement of disputes therefore often meant finding a compromise that people could live with. People seemed to have great trust in arbitrators whom they approached themselves and who often belonged to their circle of acquaintances. In ecclesiastical and secular procedural law, the figure of amicabilis compositio, or amicable settlement, exists for this purpose. The opposing parties’ acceptance of these arbitrators’ rulings was high; after all, the parties had appointed them themselves.

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