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 involved land. The properties of the abbey of Thorn were given to exploitation in various ways. In addition, tithes were levied, a form of tax amounting - in principle - to one tenth of the (grain) yield of a plot. There were also tithes of lambs, foals and piglets. In this way the abbey assured itself of a substantial income.

The relationship between the landlord - in this case the abbey - and the land user was governed by a contract, with the user having the obligation to pay rent, property tax (=annual interest in the form of money or poultry) and "keurmede" (=inheritance tax in the form of a cow or horse). The prperty tax usually related to land, but could also be related to another property, such as a mill. Initially the various taxes were commonly paid in kind, but later - especially from the ^16th century onwards - 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 (charter 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 given by the rejecting party in favour of the party complying with the ruling. 

Who were these "honourable men" who were called in as arbitrators, and why were they called in? Where did the disputes occur, what was their nature, and how were they resolved?

An archdeacon and 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 conflict between the abbey and the archdeacon (=high ecclesiastical district administrator) of the bishop of Liege, 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 step forward as arbitrators. The first, as deputy of the bishop, is at the head of the archdiocese Kempenland (of which the whole area around Breda was part) and is himself involved in the conflict. The second is recorded as provisor (=legal advisor) of the bishop of Liege 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 was vacant, they be given possession of the tithes of this parish. We also know about Reinier that he was a bibliophile and had an extensive and very expensive collection of books, as was proved by a will drawn up in July 1267. 

Engelbert's involvement apparently did not obstruct a well-considered refereeing decision. On the question of the tithes of Mertersem, the arbitrators came to a compromise. They ruled that the parish priest of Gilze would receive the tithes of the lands within that parish, as usual. In addition, he also received the right to the tithes in Burgst and Overveld, as far 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, was the judgement of the arbitrators, "will be ceded without contradiction to increase the prebends (=income) of the canons and canonesses of Thorn." 

These had to relinquish quite some money through the ruling, as they lost part of the tithes in Mertersem. However, using 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 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 help of high ecclesiastical administrators was called in, in later times knights and ministerials in particular stepped forward as mediators. Canons (among others of the Chapter of St. Lambert in Liege and the Chapter of Our Lady in Maastricht), noblemen and aldermen also regularly appeared. On one occasion even the advice of the cellar master of the monastery of Val-Dieu was sought! (charter no. 44) The help of arbitrators was called in at the request of both conflicting parties, but was apparently not always a spontaneous action, and more often occurred "at the instigation of honourable men" (charters nos. 37 and 38). 

The picture emerges that the choice of arbitrators was not only influneced by the nature of the case - preferably people with knowledge and experience were chosen -, but that the parties also looked for suitable people from a specific personal perspective. A search was made in the circle of friends and acquaintances. A dispute in 1273 between the abbess and the abbey on the one hand and lord Willem of Horn reinforces this assumption (charter no. 39). It is explicitly reports that lord Willem has 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 probably also opted for people they knew well. They chose clergymen, namely the Liege canons Jan of Rennenberg and Gijsbert of Bruchausen.

As far as matters were described in the charters, they were without exception related to property  ownership and the revenues associated with them. Sometimes it suffices to say that they concerned "various matters and points of contention." The cases paint a good geographical picture of where the abbey had possessions and hence 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", so 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 versus the abbey

A controversy occurred in the 1280s between abbess Guda of Rennenberg and the abbey and the priest of the parish of Thorn, Jan of Baexem, also "eternal vicar" (=permanently appointed priest) of Oirschot (charter nos. 54 and 55). This was a conflict with a wider dimension than just land matters. While one disagreement concerned the rights to the noval tithes (=taxes on new crops or on newly reclaimed land) in Thorn, other matters related to whether the parish priest could automatically assert a right to the canonry of the abbey and to the prebends (=revenues) applicable to it. 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 abbey managed to secure from the parish priest in advance his approval of a settlement. This meant that two-thirds of the novelty tithes would fall 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 under 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 backed down 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, the future tithes levied on the new fields fell for two-thirds to the abbess and abbey and for one-third to the parish. The mediators relied for this rule on "the custom hitherto observed by the cathedral of Liege," which they had been referred to by some legal scholars. The "cathedral of Liege" refers to St. Lambert's Cathedral.

Clarity was also established in the powers of abbey and parish to celebrate death 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 call on the chaplains at the altars of the abbey church. The result was that the parish missed 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 about the status of the staff of the abbess and convent. This did not belong to the parish, and it was exempted from parochial obligations if housed within the immunity (=legal seclusion) of the convent.

The authority of the arbitrators was once again great, for both Abbess Guda of Rennenberg and the convent and parish priest Jan of Baexem asked the bishop of Liege, John of Flanders, on October 1, 1287, to ratify the rulings (charter no. 58). Abbess Guda of Rennenberg and parish priest Jan of Baexem apparently were not satisfied with the anchoring of their arrangement about 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 an established formal basis (charter no. 70).

In conclusion

It is striking how often in dispute resolution the method of what we now call mediation was followed. Did the reason lie in a lack of knowledge (legal and otherwise) and authority on the part of the regular judicial authorities? Was the capacity for acceptance enhanced by judgements of chapter lords from Liege or Maastricht or suggestions from knights or ministerials from the Ubach area? We can only guess. One fact is that medieval man was always looking for practical solutions. Settling disputes therefore often meant reaching a compromise, with which one had to be able to live. People appeared 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 figure of the amicabilis compositio, or amicable settlement, exists for this purpose. The ability of the opposing parties to accept the judgement of these arbitrators was great, because, after all, the parties had appointed these themselves. 

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