Out-of-court dispute resolution ahead of its time.

Disputes over tithes and property taxes between Thorn Abbey and third parties, 1265–1300

Introduction

Conflicts in the ^13th century often revolved around land. The properties of the Abbey of Thorn were put to use in various ways. In addition, tithes were levied—a form of tax amounting, in principle, to one-tenth of a plot’s grain yield. There were also tithes of lambs, foals, and piglets. In this way, the abbey secured a substantial income.

The relationship between the landlord—in this case, the abbey—and the land user was governed by a contract, under which the user was obligated to pay rent, property tax (an annual payment in the form of money or poultry), and "keurmede" (an inheritance tax in the form of a cow or horse). The property tax usually pertained to land, but could also apply to other property, such as a mill. Initially, the various taxes were commonly paid in kind, but later—especially from the ^16th century onward—they were increasingly paid in money.

Disputes over tithes and property taxes were commonplace. The charters are full of them. It is striking that these disputes were regularly submitted to “amicable arbitrators” and “wise and judicious” men (charters nos. 38 and 39). An extrajudicial dispute resolution avant la lettre! The parties then promised to “accept, approve, and comply with the ruling of these arbitrators without violations,” under penalty of a fine to be paid by the rejecting party in favor of the party complying with the ruling.

Who were these "honorable men" who were called in as arbitrators, and why were they called in? Where did the disputes take place, what were they about, and how were they resolved?

An archdeacon and a bibliophile scholar as referees

The first arbitral decisions appear in 1265, at least in the charters of the Abbey of Thorn (charter no. 21). In a dispute between the abbey and the archdeacon (the high ecclesiastical district administrator) of the Bishop of Liège, Engelbert of Isenburg, over the tithes of Mertersem (Princenhage near Breda), Burgst (north of Breda), and Overveld (near Etten), the aforementioned Engelbert and a certain Reinier stepped forward as arbitrators. The first, as the bishop’s deputy, heads the archdiocese of Kempenland (of which the entire area around Breda was a part) and is himself involved in the conflict. The second is recorded as provisor (=legal advisor) to the Bishop of Liège and scholar (=head of and teacher at the cathedral school of the Chapter of Our Lady in Tongeren). While nothing is known about Engelbert of Isenburg, we know a little more about the second. He visited the Abbey of Thorn in 1262 (charter no. 17) and found that the income of the canonesses and canons (priests) was too low for them to support themselves. Therefore, he decreed that, as long as the priesthood of Baarle remained vacant, they be granted possession of the tithes of this parish. We also know that Reinier was a bibliophile and possessed an extensive and very expensive collection of books, as evidenced by a will drawn up in July 1267.

Engelbert’s involvement apparently did not interfere with a well-considered arbitration decision. On the issue of the tithes of Mertersem, the arbitrators reached a compromise. They ruled that the parish priest of Gilze would receive the tithes from the lands within that parish, as usual. In addition, he was also granted the right to the tithes in Burgst and Overveld, insofar as these lay within the parish of Mertersem. The parish priest of Gilze did not have to worry about the future, because he was assured that the income assigned to him “would be incorporated into the tithes of the parish of Gilze forever.” The remaining tithes of Mertersem, according to the arbitrators’ judgment, “will be ceded without objection to increase the prebends (=income from domains) of the canons and canonesses of Thorn.”

As a result of the ruling, they had to forfeit a considerable sum of money, as they lost part of the tithes in Mertersem. However, following the advice of "good men," they eventually submitted completely.

A motley procession...

Between 1265 and 1300, a motley procession of arbitrators passes before us, always with the abbess and the convent as parties. The other parties were mostly land users or tenants, but also monasteries, parishes, knights, and once even the Duke of Brabant. While in the case of the tithes of Mertersem the assistance of high-ranking ecclesiastical administrators was sought, in later times knights and ministerials in particular stepped forward as mediators. Canons (including those of the Chapter of St. Lambert in Liège and the Chapter of Our Lady in Maastricht), noblemen, and aldermen also appeared regularly. On one occasion, even the advice of the cellar master of the monastery of Val-Dieu was sought! (charter no. 44) The assistance of arbitrators was sought at the request of both conflicting parties, but this was apparently not always a spontaneous action, and more often occurred “at the instigation of honorable men” (charters nos. 37 and 38).

The picture that emerges is that the selection of arbitrators was not only influenced by the nature of the case—preferably people with relevant knowledge and experience were chosen—but that the parties also sought out suitable individuals from a specific personal perspective. A search was conducted among friends and acquaintances. A dispute in 1273 between the abbess and the abbey on the one hand and Lord Willem of Horn on the other reinforces this assumption (charter no. 39). It is explicitly reported that Lord Willem had himself represented, at his request, by the knights Hendrik of Baexem and Marsilius of Berg. It may be assumed that they belonged to his circle of acquaintances. The abbess and the convent likely also chose people they knew well. They selected clergymen, namely the Liege canons Jan of Rennenberg and Gijsbert of Bruchausen.

As far as the matters described in the charters are concerned, they all related to property ownership and the revenues associated with it. 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 property and thus had interests: Princenhage (or Mertersem), Etten, Gilze, Baarle (all located near Breda), Ubach, Bergeijk, and Neeroeteren. There is one exception to the rule that controversies mainly arose “in another country,” and thus not at home: the case of the parish priest of Thorn, Jan van Baexem, against the abbess and convent of Thorn.

Priest Jan of Baexem vs. the Abbey

A controversy arose in the 1280s between Abbess Guda of Rennenberg and the abbey, on the one hand, and the priest of the parish of Thorn, Jan of Baexem—who was also the “eternal vicar” (i.e., permanently appointed priest) of Oirschot—on the other (charters nos. 54 and 55). This conflict had broader implications than mere land disputes. While one point of contention concerned the rights to the noval tithes (taxes on new crops or on newly reclaimed land) in Thorn, other issues centered on whether the parish priest could automatically claim a right to the canonry of the abbey and to the associated prebends (revenues). In addition, there was disagreement over parish rights and obligations, which had long strained the relationship with the abbess and the convent. As a compromise, the abbess and the abbey managed to secure the parish priest’s approval of a settlement in advance. This meant that two-thirds of the novelty tithes would go to the abbess and the abbey and one-third to the parish, in exchange for the annual receipt of a quantity of rye and oats. This was done on the condition of papal or other (higher) confirmation of this (charter no. 54).

The deacon and cantor of the Maastricht chapter of Our Lady, Alexander and Hendrik van Houthorne, respectively, were appointed arbitrators. (charters nos. 53 and 55). They ruled in 1287, “after competent deliberation, after studying the compromise, after taking the advice of legal scholars and doing (everything) properly .” Priest Jan relented regarding the canonry of the abbey; this did not automatically follow from the priesthood of the parish. For the rest, the ruling included allowing both parties to levy both the old and new tithes on the fields where they had hitherto been accustomed to do so. However, two-thirds of the future tithes levied on the new fields were to go to the abbess and the abbey, and one-third to the parish. The mediators based this rule on “the custom hitherto observed by the cathedral of Liège,” which had been cited to them by some legal scholars. The “cathedral of Liège” refers to St. Lambert’s Cathedral.

Clarity was also established regarding the authority of the abbey and the parish to celebrate funeral Masses and to include Mass intentions in the prayers of the Eucharist. Apparently, it had become customary for parishioners to bypass their parish priest and other parish priests for this purpose and instead turn to the chaplains at the altars of the abbey church. As a result, the parish lost out on significant income. To accommodate the parish, the arbitrators stipulated “that the chaplains of the altars (of the abbey church) should not receive donations from the parishioners at the four great feasts, the thirty-day celebrations, and death masses and special masses, unless it was established beforehand that the parish priest or his deputy had been satisfied from these donations.” Finally, rules were established regarding the status of the abbess’s staff and the convent . This did not belong to the parish, and it was exempt from parochial obligations if housed within the immunity (=legal seclusion) of the convent.

The arbitrators’ authority was once again considerable, for both Abbess Guda of Rennenberg and the convent, as well as parish priest Jan of Baexem, asked the Bishop of Liège, Jan of Flanders, on October 1, 1287, to ratify the rulings (charter no. 58). Abbess Guda of Rennenberg and parish priest Jan of Baexem were apparently not satisfied with the formalization of their agreement regarding the tithes in Thorn and concluded a new agreement in 1299. While they were at it, the tithes in Beersel, Baexem, Haler, and Stramproy were also included, so that these too received a formal basis (charter no. 70).

In conclusion

It is striking how often the method we now call mediation was used in dispute resolution. Was this due to a lack of knowledge (legal and otherwise) and authority on the part of the regular judicial authorities? Did the likelihood of acceptance increase as a result of rulings by chapter lords from Liège or Maastricht, or suggestions from knights or ministerials from the Ubach area? We can only speculate. One fact is that medieval people were always looking for practical solutions. Settling disputes therefore often meant reaching a compromise that everyone could live with. People seemed to have great confidence in arbitrators, whom they approached themselves and who often belonged to their circle of acquaintances. In ecclesiastical and secular procedural law, the concept of amicabilis compositio, or amicable settlement, exists for this purpose. The opposing parties were highly likely to accept the judgment of these arbitrators because, after all, the parties had appointed them themselves.

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