General provost of the Netherlands

Payment of March 1st, 1755 of prince Charles-Alexandre of Lorraine for the company of the general provost of the Netherlands

March 1st 1755, the general governor Charles-Alexandre of Lorraine promulgates a payment which fixes the operating rules of the company of the general Prévôt of the Netherlands. Which are the motivations of such a payment?

Context

Political context

Charles VI, emperor of the Holy Germanic Roman Empire and archduke of Austria, did not have a male heir. In order to protect the heritage from his daughter Marie-Therese, it obtains principal powers of the time (Brandebourg - Prussia, France, England), which they will assert none the possessions that it will bequeath in heritage to his daughter Marie-Therese (Pragmatic Sanction). He thus hopes to avoid a war of succession with these great powers, comparable with the War of succession of Spain which had shown a division of the Spanish possessions between the Bourbon family (Philippe V was the grandson of Louis XIV) and the family Habsbourg).

In October 1740, to died of Charles VI, his Marie-Therese daughter goes up on the throne. The kings of France and Prussia hasten to invade the Austrian possessions, in violation of their engagements. Marie-Therese calls upon king d' Angleterre, guarantor of the Pragmatic Sanction. It is the beginning of the War of succession of Austria which will be completed in 1749 on quasi a status quo. Marie-Therese loses the militarily occupied Silesia by the king de Prusse. She tries to recover Silesia in exchange of the Netherlands and, according to G. - H. Dumont, would have made several offers in this direction with Louis XV, but without success.

This little of interest of Vienna for the Netherlands can be explained by military considerations - distant territory difficult to defend, like showed it the French invasion in spite of the Barrière - but such financial - importance of the tribute of war imposed on the Netherlands. However, this area has unquestionable assets. At the 16th century, following the discovery of the America S, the center of gravity of Europe slips of the the Mediterranean to the Western Europe. The Netherlands occupy there a central place but at the border between the catholic world of Mediterranean Europe and Protestant Europe of the North-West. And even if contrast between the economic development of the United Provinces and that of the Netherlands is obvious, one cannot charge it to the difference in religion, as the results obtained by the economic policy testify some to the ambassador plenipotentiaries in second half of the 18th century.

Socio-economic context

The ambassador plenipotentiary Botta-Adorno, named in 1749, followed (like its successors Charles de Cobenzl, 1753-1770, and Georg Adam von Starhemberg, 1770-1779) a policy of economic recovery. He obtained initially a revision of the customs tariffs unfavourable in the Netherlands, imposed by England and the United Provinces (Traité of Antwerp known as “of the Barrier”, 1715) and confirmed by the treated of Aachen (1748) at the end of the War of succession of Austria. This revision of the tariffs lay within the scope of a policy favorable to the transit trade from which the government drew from important resources. Then, it “created chambers of commerce in the main cities of the country; it re-equipped the port of Ostend which had returned of so great services to the Compagnie of the Indies; it improved the channel of Bruges to Ghent, digging through the city of Artevelde famous the cut ; it made trace the channel of the Rupel to Leuwen; it built new roads. At the same time as it dealt with the transportation routes in the Netherlands, the marquis Botta-Adorno supported the establishment of manufactures such as potash factories, sugar refineries, soap factories, glassmakings and tobacco factories; it supported the industry of the fabric, ressuscita those of silk, lace and the tapestry”.

This policy seems to have obtained real successes but was not sufficient to avoid social difficulties at one time of political and demographic changes. The European population doubles at the 18th century, thanks to a reduction in mortality. This reduction is due to some progress in the field of hygiene and, especially, in that of the food. Thanks to progress in transport, the food is “more regularly assured everywhere”. The urban population in particular makes remarkable great strides, even if it forms yet only one third of the general population.

A few years later, prince de Starhemberg had to take “severe measures against the armed vagrants who afflicted lowland by their armed robbery but, at the same time, it endeavoured to organize the assistance with poor truths, out of state, by their old age or their infirmities, to earn their living . Plague was not stopped - especially in the cities where nearly a quarter of the inhabitants was with the load of public charity -, but at least tried one to oppose to him the lights of the century of philanthropy”.

“True poor”. The concept is interesting because he testifies to the importance of misery at that time. As showed it the sociologist Robert Castel, the attitude of the company towards its poor evolves/moves unceasingly between the compassion, when they are very few, and the judgment, when they become too indicators. This distinction between the “goods” and “the bad” poor, appeared with the the Middle Ages, was taken again with the Réforme: “The calvinists in particular distinguished between the worthy poor and unworthy . Alms was not to be any more made with the aveuglette, but with precise goals. The parishes were to found a Bourse of the poor , supplied with a specific parochial tax. One intended moreover to overcome this poverty, up to that point considered as natural, while learning how to the poor to work”. From where enfermement in the houses of correction which at a cheap rate provided a labor to the emergent industries, or the deportation with the colonies. And death for refractories and the recidivists. In the catholic countries, the attitude was the same one.

But which is these vagrants who caused already concerns at the end of the Middle Ages? “On the bottom of a social structure where the statute of an individual depends on his embedding in a tight network of interdependences, the vagrant makes spot”. And what to say then when they move in armed bands? A first, or one of the first attempts at systematization is proposed in an ordinance of François Ier in 1534, stigmatizing “all vagrants, idlers, people without consent and others which do not have any good to maintain them and which do not work nor do not plow for gaigner their life” (Jourdan, Decrouzy, Isambert, general Recueil of the old French laws , T. XII, p. 271). If the vagrant is well this “useless in the world” alive in parasite of the work of others, excluded from everywhere and condemned to the wandering in a company where the quality of anybody depends on the membership of a statute, one is explained perfectly and the pejorative representation which are always associated for him, and the pitiless character of the treatment which is applied to him. The importance of the mission of the general provost of the Netherlands and the drossart of the Brabant was some reinforced.

Cultural context

Until the Reform, a common design of the basic principles of the right had course. The right was a synthesis carried out with the Middle Ages of the Roman law and principles resulting from the Bible and whose Pape was the guaranteeing one. The Reform broke this unit but created also a vacuum: which international law to apply since the pope could not be any more the guaranteeing one and the referee? A current appeared at the end of the 17th century in Germany, which proposed a natural Right founded on nature and rejected the designs of Machiavel and Hobbes, which had worked out doctrines justifying the reason of State. It is in this context that “the doctrines of the human rights and the citizen developed: right to the inviolability of the human person, right to equity of the courts. The XVIIIe century applied to a true in-depth reform in a particular field, where the injustice and inhumanity were felt even hard than everywhere else: the criminal Law and criminal justice”.

It is in this particular context that one can analyze the reforms of justice tried by the government habsbourgeois and, in particular, the whole of the ordinances aiming reorganizing operation and at limiting competences or the means of action of the drossart of the Brabant and the general provost of the Netherlands and the hotel.

Institutional context

In 1531, Charles Quint proceeds to a general reform of the central government of the Netherlands. He delegates his power to an assisted general governor of three permanent collateral councils: Council of State, private council and council of Finances. These institutions had been removed by Philippe V of Anjou and had been replaced by only one council, on the French model. They will be largely restored by Charles VI and entirely by Marie-Therese.

The function of general governor becomes a permanent function but the civil servant, chosen by the sovereign among the princes of blood, is removable. He receives a general but together with delegation of powers precise instructions. Moreover, it cannot act without taking the opinion of the collateral councils. This is why the introduction of the payment presented here specifies that it was stopped “by private opinion of the councils and finances of Its Majesty”. It is advisable to add that the first general governor named by Charles VI, the prince Eugene of Savoy, absorbed by the control of the war against the Othoman , will not assure the government of the Netherlands and will delegate his powers to an ambassador plenipotentiary. This function of ambassador plenipotentiary will take importance with the wire of time, the point to become permanent and to double the general governor. At the time of Charles-Alexandre of Lorraine, the ambassador plenipotentiary had already become the privileged adviser of the Marie-Therese empress and the faithful one carrying out his policy.

The Council of State, made up exclusively of members of high the Nobility, at least in the beginning, has a competence of opinion in all the matters of the greattest importance: assistances and subsidies, international relations, but also the nomination at certain ecclesiastical stations. This last aspect was important to ensure the incomes of the juniors by the families.

The council private, composed jurisconsults resulting from the average nobility and, gradually, upper middle classes, has a competence of opinion with regard to the management of the State but its capacities go well beyond. It is charged to prepare, promulgate and interpret the edicts. Its “chief and president” are the Minister of Justice of the Netherlands. It directs and controls justice and the police force and, for this reason, treats the civil cases and criminal which exceed the competence of the ordinary courses of justice. In practice, the increasing technicality of the files obliges the sovereign to more and more often trust its council and to thus gradually confer to him a decision-making power in fact.

The council of finances, composed members of the sword and noblesse de robes and experts, had in load the management of the public money. It is by its intermediary that the public expenditure was carried out. The global amount of the “assistances and subsidies” was fixed by him, then negotiated with the provincial States which also fixed the distribution between the cities. The local authorities could not raise excises without its agreement. It was explicitly qualified for the financial management of criminal justice.

Justice was organized according to the principle of the states (Noblesse, Clergé, Tiers state) and of the hierarchy of the courses and courts. With the bottom of the hierarchy were the courses seigneuriales and domanial, then one found the urban échevinages rural, échevinages, the “provincial” councils of justice of Flanders, Namur, Tournai, the Brabant, Hainaut and Luxembourg. The three first “were capped” by the Grand the Council Malignant, the last three were sovereign. However, the private council could intervene in last spring.

At the time of Marie-Therese, there were two more provostal dispensers of justice: the drossart of the Brabant and the general provost of the Netherlands and the hotel. In the beginning, the drossart had the role of giving following the “complaints of justiciable against the negligent officers or corrupt officials”. But with time, it was also charged to fight against the vagrancy armed which prevailed in the duchy, to treat the businesses which exceeded local competences of the courses and to punish “the authors of out of date crimes, when the ordinary territorial officers during one year had remained in the inaction”.

About the middle of the Middle Ages, one sees appearing “removable cantonal officers, having the quality of permanent representatives and superiors of the prince in a notable fraction of his duchy or his county”. These officers bore the name of Baillif or Prévôt. They had a limited territorial competence which supported the impunity of the delinquents busy from one territory to another. To fight against this phenomenon, Charles Bold the created the general provost of the marshals being competent on the whole of its principalities. Under Charles Quint, this provost, become general provost of the Netherlands, lives itself to also entrust the missions of the provost of the hotel which was qualified for the subaltern employees of the court, the nobility being subjected to the private council. As a general provost of the Netherlands, it was primarily in charge of the fight against armed vagrancy and the out of date crimes.

Contrary to the other jurisdictions, the provostal jurisdiction ensured at the same time the maintenance of law and order, the investigation, the instruction of the lawsuit, the lawsuit itself and the judgment. The provosts laid out, with this intention, of a made up troop infantrymen, riders and of a torturer, even of a chaplain at certain times. Their competence however was limited to the vagrants, people without consent, etc They did not have any jurisdiction on the “domiciled” people and the individuals being inside the cities: “Because, we says Ferrière, the provostal judges were instituted only for the fields” ( Dictionnaire of right and practice , Paris, 1717). In all the cases, they judge in last spring, never with load of call. Established to extirpate the brigands, they constitute a fast, expeditious and radical justice. They can order the question and condemn to death.

The private council exerted a control on the activity of the general provost who was to inform quarterly and written his chief and chair on the adopted suspects, the marked verdicts and the sentences carried out. It was in the same way to justify its expenditure near the general treasurer of finances and to give to him two thirds of the effects (gold, money, invaluable stones) seized on the criminals.

In spite of this real control, the provostal dispensers of justice had exorbitant capacities. Philippe II had tried to restrict them, but without much success because it had run up against the general opposition of the courts. The things changed at the 18th century when, following abuses made within the framework of the provostal actions, Marie-Therese could start a true reform which will see, in its term, the provostal dispensers of justice obliged to submit the defendants with another jurisdiction to be judged.

Manpower seem considerably to have varied with the liking of the circumstances: 19 people at the beginning of the 16th century, 14 people and a confessor in 1522, 10 in 1526, 17 plus a clerk, a chaplain and a torturer in 1539, 40 people end 1750, 80 in 1751 but 43 in 1755 and 46 in 1756. In 1785, manpower will go back to 73 men and in 1790, at the end of the Révolution brabançonne, they will reach 300 men.

The payment of Charles of Lorraine

Summary of the payment

The payment aims at determining, on the one hand, the budgetary framework of the company of the provost (Article 1 remunerations, Article 2 and 6 manpower, Article 8 and 10 to 12 operation costs) and, on the other hand, the operating rules of the company at the time of its interventions (Article 9,13,15).

Several articles (Article 5,6 and 7) adopt the rules of justification of the expenditure. An article (n° 14) determines the conditions of tax and precise exemption that this exemption is not valid apart from the service and certainly not for the private expenditure of the personnel.

It is recalled to the provost there (Article 3) that its personnel is held “to make hunting” for the contraveners, not only on the main roads, but also on the whole of the territory, including apart from the ways. In the same way, it is pointed out (Article 4) that the payment of the August 12th 1749 expressly prohibits to the personnel of the provost to receive anything of the population under penalty of corruption or misappropriation.

Contents analyze

The payment of March 1st 1755 falls under an immense operation of resequencing of public finances after excesses related to the War of succession of Austria. These excesses are of two orders. Initially, from the considerable expenses came to burden what one would call today the budget of the State. Debts were contracted that it is now necessary to refund. Then, the local authorities (provinces or cities) benefitted from the circumstances to follow a fiscal policy apart from the rules in force. This operation of resequencing was translated, in particular by the ordinance of the August 12th 1749. This ordinance is justified by the fact that the local authorities benefitted from the years of war, either to borrow, or for raising taxes beyond the amounts necessary to pay the contributions due to the sovereign within the framework of the financing of the war of succession of Austria. The choice of a financing via the loans undoubtedly has as a reason the prohibition which was made with the councils (provincial, urban) of raising taxes without the agreement of the sovereign (see above “council of finances”). Another explanation lies in the fact that a financing by loan is a source of profit for the lenders. Always it is that important debts were contracted during the war, for excessive amounts and apart from the rules. However, these debts decrease the ability to pay tax of the local authorities to the financing of the central government but also to the tribute of war which the Netherlands must pay (see above “Political context”).

The payment of 1755 fits very clearly in this policy of better control of the public expenditure. It limits manpower of the provost and remunerations. It imposes precise rules as regards engagements of non-recurring expenses (removal cost of the company). It requires finally, so that the expenditure refundable, that those duly and are precisely justified, i.e. is documented.

But beyond these financial concerns, the payment of 1755 also lies within the scope of the policy of modernization of the State and the fight against the abuses. In this respect, four articles draw the attention:

article 3 reminds the provost that its company is held to beat “not only main road, but also isolated roads and interior of the grounds”. This provision lets suppose that the company of the provost was not to show an excessive zeal in the repression of vagrancy. Or, it concentrated on the main roads, where there were perhaps less vagrants but more interesting targets
article 4, more astonishing, the absolute prohibition, already formulated in a payment of recalls 1729 concerning the drossart, to receive anything of anyone.

These two articles give an image little reluisante provostal justice. Would this one have benefitted from its wide capacities (see above “institutional context”) to be devoted to a systematic racket? The fact of being able to preserve an important part of the effects seized on the “criminal” it encouraged the company of the provost to direct his actions towards targets more profitable than the vagrants, like the travellers for example. But only travellers? Or also local population? For example, in the absence of “New Year's gifts”, to use the term of the payment, the company of the provost could threaten not to intervene against the armed bands with vagrants.

In the same way, article 2, which subjects to a written authorization and express of the government the recruitment of additional manpower beyond the framework given, gives rise to think that the provost recruited “extraordinary archers”, in a too frequent way compared to the needs for the service. At one time when a quarter of the population lived benevolence, it was to be easy to recruit of the personnel at low prices and to invoice it at the official price with the government.
article 14, finally, which exempt the company of the payment of the taxes during their displacements, precise although this exemption is not worth that within the framework of the service: “without being able to claim the same exemption when they leave for their particular businesses and less still for wood, coals, fodder or other food products which they draw from lowland for their consumption”. This precision lets suppose that the provost and his personnel somewhat tended to be considered in permanent service and that they were to largely misuse this exemption by extending it to their private personal expenditure.

How to explain such practices? “Pure venality, by which loads were negotiated subject to payment by the capacity itself, was a very current practice at the lower levels inter alia fields and finances and in functions such as écoutète and baillif. At the provincial and central administrative level on the other hand, that generally did not occur before 1650”.

This venality, associated with slownesses in the payment of the wages and allowances by the central capacity, could lead the provosts to make sure of the less official sources of income. Especially if the wages were considered to be insufficient. This temptation was certainly reinforced by the wide capacities of the provost who was in charge of the police force (investigation and arrest), of the instruction of the file, the lawsuit, the judgment and his execution.

In any event, the abuses had to be sufficiently important and frequent to make it possible the central capacity to take, the October 13rd 1764, a payment restricting the capacities of the provost significantly. From now on, it could not only act any more but would be to flank of an assessor who was to be closely associated at all the stages with the procedure, since the investigation until the execution of the sentence. In the event of dissension between the assessor and the provost on the sorrow or in the event of capital punishment, the assessor of the drossart was to also be associated.

The payment of March 1st 1755 does not seem to have borne its fruits because “the December 29th 1764, the government still took new measures to the goal to counter excesses of the company of the provost. Regulations relating to the conditions of recruitment of the personnel were clearly formulated, with the way in which the company was to achieve its task, with the relations with other legal officers, with the salary scales, the fixed-price of the services, administrative control, the recording and the justification of financial expenditure”. In short, as many provisions which appeared already in the payment of 1755.

Conclusions

The first conclusion which one can draw from the reading of the payment of March 1st 1755 is that the New Year's gifts of the factor are not an innovation of last century. That confers a new charm to them, and nevertheless obsolete.

More seriously, the payment, very precise as for the missions and to the operating rules of prévôté general of the Netherlands, gives, by what it imposes and what it prohibits, an idea of the operation of this jurisdiction. This one had exorbitant capacities of which she misused. Curiously, the central, Spanish or Austrian capacity, could not put order at it. It would be interesting to push the investigations further. Two research orientations could be retained: is

Which the reasons of the incapacity of the central capacity to put order in provostal justice? The general provost of the Netherlands depended directly on the central capacity. He was also provost of the hotel. He was thus to be well in court and to have unquestionable supports. Did the opposition to the reforms come from circles close to the central capacity or the local magistratures? is
Which the extent of the abuses made by the company of the provost? Can one find traces in the files of them (courts, administrative correspondence, lampoons and make out,…) ?

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