Medieval and early modern rulers commonly proclaimed that protecting the legal entitlements of the personae miserabiles, who included widows, orphans, the chronically ill and “the poor,” was among their principal duties.Footnote 1 The entitlement of the poor to legal services was not a matter of grace but was in fact their “good right.” For example, widows, orphans, and other personae miserabili had the privilege of being heard in first instance before high courts, so as to save time and costs in pursuing their legal claims.Footnote 2 Another example of manifest commitment to legal entitlement for the poor was the refusal of Philip II of Habsburg to consent to measures that would limit the jurisdiction of his Castilian chanceries; the measures had been proposed so as to limit the chanceries’ ever-increasing workload, but, because they could also restrict indigents' access to such courts, were rejected by the monarch.Footnote 3 At first glance, such inclusiveness appears to have been achieved, particularly in view of the large numbers of petty conflicts brought before formal law courts during the long sixteenth century, leading to a so-called “legal revolution.”Footnote 4 Historians generally acknowledge that broad layers of early modern society made abundant use of civil adjudication in arranging their social and economic relations and interests.Footnote 5
However, there are indications that raise doubts about whether these ideals of a socially inclusive judicial infrastructure were fulfilled. Although the social composition of early modern law courts requires closer analysis, it has been established that indigent families in cities in France and the Low Countries resorted to litigation far less often than did more moneyed citizens.Footnote 6 In mid-eighteenth century Leiden, even the markedly inexpensive Peacemakers court, a small claims court that used a decidedly transparent procedure, attracted few plaintiffs from among the lower 60%: the less wealthy households.Footnote 7
Moreover, the increasing fees for waging lawsuits likely restricted the access to official processes of justice throughout the early modern period for households of modest means.Footnote 8 And although not all urban courts stipulated that litigants were to use a legal spokesperson, it is likely that assistance from such experts became indispensable, especially as legal services became increasingly professionalized and, correspondingly, more complex. Such increased complexity and costs of litigation must have been part of the reason for the so-called “great litigation decline” experienced by a wide range of law courts across Western Europe in the late seventeenth and eighteenth centuries.Footnote 9
This article examines the provision of legal aid for the poor, to enable understanding of how early modern local and “national” governments in the Low Countries addressed the accessibility of their law courts during a period when judicial infrastructures were marked by increased costs and complexity. The article argues that law courts aimed to provide free legal aid only to a limited subset of the poor, namely, the “deserving poor,” and thereby generally excluded the larger group of so-called “undeserving poor” from having access to justice. That comparatively few lawsuits were waged free of charge is attributable to the limited attraction that law courts offered to the large group of poor households, as well as to the liabilities such free legal aid could potentially incur. Legal aid to the poor was always granted provisionally: if judgement was rendered against the party litigating free of charge, then the party became liable for payment of legal costs. Therefore, notwithstanding the putative attentions paid to such ideals by state authorities and monarchs alike, the provision of legal aid to the financially disadvantaged did not aim at increasing the courts' accessibility for all inhabitants. Rather, such provisions were structured so as to include only a particular socioeconomic segment of all impoverished households, and were intended to confirm social hierarchies rather than to remedy social inequalities.
The Low Countries have been chosen as a focal point because they offer an interesting case study in legal-historical terms. Law in the Low Countries drew upon a mixture of three European sources of law: learned law, customary law, and legislative law. Moreover, the Low Countries were characterized by legal diversity, reflecting the high levels of urbanization and the relative autonomy of cities in resolving disputes among their citizens.Footnote 10 Therefore, analysis of legal aid for the poor in the Low Countries is especially relevant to a wider European perspective.
This analysis consists predominantly of an examination of legal aid provided to the poor in the urban law courts of Leiden, Antwerp, and Brussels. The main source material consists of petitions for legal aid filed to the respectively magistrates of Leiden and Antwerp, and documents in the city archives of Brussels and the national archives in Brussels relating to deliberations about the provisioning of free legal aid.Footnote 11 To broaden the significance of the findings, additional evidence has been gathered from archives of the High Courts of the provinces of Brabant, Flanders and Holland (generally considered to have been the “core provinces” of the Low Countries) and of the urban courts of Rotterdam and Amsterdam and the High Court of Utrecht, which also served as a local, urban court. Legal aid for the poor was termed pro deo in the consulted documents. This term was also used in other kinds of official documents, including petitions, and signified that taxes (typically seals) on such documents had been waived in consideration of the poverty of the person involved. This article will alternately use the terms “free legal aid” and “pro deo” assistance in referring to legal aid to the poor. As will be discussed, the lack of normative sources on such legal aid compels researchers to examine it from the angle of daily practice. This article presents such an enquiry.
Leiden, Antwerp, and Brussels in the Eighteenth Century: Context and Sources
During the early modern period, Leiden was—by Dutch standards—a large town, with an economy dominated by textile manufacturing. In the Dutch Golden Age, the local textile manufactures attracted workers on a large scale, resulting in the population reaching approximately 70,000 inhabitants. However, during the eighteenth century, massive shrinkage afflicted Leiden's textile industry and its population had contracted to approximately 30,000 inhabitants by mid-century. Steep inflation and economic decline saw wide segments of the population fall into poverty. The census of 1749 recorded more than 1,500 households of the total population of 9,200 households as being recipients of poor relief. However, many more of the town's households should be considered as “poor,” for more than half of the population was taxed quite modestly owing to their limited resources.Footnote 12
The judicial infrastructure of the city of Leiden stemmed largely from the sixteenth century, when economic growth and large-scale immigration of refugees from the south had strongly increased the necessity for the city government to regulate conflict resolution. Leiden inaugurated a tribunal of Peacemakers in 1598. The costs of such tribunals were deliberately kept low, so as to guarantee accessibility.Footnote 13 Similar facilities existed in numerous other locations, including Amsterdam, The Hague, Rotterdam, Haarlem, Gouda, Nijmegen, and Middelburg.Footnote 14 In the years 1664–68, when Leiden's population numbered roughly 60,000 inhabitants, the tribunal heard approximately 6,000 cases annually.Footnote 15 Litigants who were dissatisfied with the Peacemakers' verdict or whose claims exceeded the tribunal's jurisdiction could take their cases to the bench of aldermen.
The bench of aldermen was already functioning in the Middle Ages, but underwent important changes during the sixteenth century. The so-called roll procedure, an open process in which plaintiffs and defendants exchanged written “conclusions” and pleaded their respective cases at a session of the court, had been introduced by mid-century. Roman or canon law also found its way into judicial proceedings. However, despite the Peacemakers court being—at least in theory—easily accessible even for poor households, litigation at the bench of aldermen became somewhat expensive.Footnote 16
The introduction of learned law and written procedures into the proceedings of the benches of aldermen entailed that litigants increasingly avail themselves of legal spokesmen, notably advocaten and procureurs. An advocaat (“advocate”) held a university degree in Roman or canon law and advised his clients on legal matters, delivered oral arguments, and wrote and signed petitions and conclusions. Likewise, litigants commonly employed, via written authorization, a procureur (“procurator”) to pursue their legal business at court. A procureur, although not holding a law degree, was an official associated with the court and was familiar with all necessary steps in formal court procedure. He ensured that enough copies of all documents were available, and deposited the documents at the court registry.Footnote 17
The extent to which poor inhabitants of Leiden sought legal aid during the eighteenth century can be derived from the 402 petitions for free legal aid that they filed with the bench of aldermen during the years 1751–1810. These petitions could be directly traced via an extensive index card collection created by volunteers at the Leiden Regional Archives; these records include the names of the parties in each case, the case matter, the appeal for being allowed to litigate pro deo, and the decision taken thereupon by the bench of aldermen. A selection of the actual registered petitions was also consulted, especially to uncover why certain requests to litigate pro deo had been rejected.Footnote 18 Lastly, the incidence of pro deo cases was checked in a selection of roll registers for the bench of aldermen and the Peacemakers court, so as to control for the comprehensiveness of the registered and indexed petitions.Footnote 19
Similar sources have been examined for eighteenth-century Antwerp. Several hundred petitions were submitted to the city magistrates each year and then registered in so-called petition books, which are fully conserved in the Antwerp city archives. Because of the vast numbers of petitions, it was not practicable to include them all in the research design. To efficiently find petitions for free legal aid, only those petitions filed pro deo or for free (for which the charges for document seals and for registering the petition were waived on account of the petitioner's poverty) have been examined for 19 sample years in the eighteenth century. For these 19 years, ninety-seven such petitions were registered.Footnote 20 Also consulted for this analysis were the so-called furnissementsboeken, which present an overview of official fees paid by litigants, including for pro deo cases.Footnote 21
Eighteenth-century Antwerp provides an interesting supplemental case study. One of the most populous cities of the Southern Low Countries, it had, since the blockade of the river Scheldt in the late sixteenth century, become a regional textile centre, with a population of approximately 50,000 inhabitants. During the first half of the eighteenth century, the city experienced economic and demographic decline. This was especially because of foreign competition, which debilitated the once flourishing export-oriented textile industries. After 1750, however, Antwerp experienced expansion with the emergence of new types of textile manufacturing, although only limited sections of the population benefited from the economic boom that accompanied the industry's restructuring. The new, non-guild-based manufacturers of mixed fabrics and cotton paid very low wages and contributed to accelerated impoverishment of small master guildsmen. Pauperism became a large and growing problem in eighteenth century Antwerp. In 1770 only 10% of the city's population relied on governmental relief; by 1805, the figure had grown to 18%.Footnote 22 As with Leiden, the actual share of destitute people was probably higher, as only limited sections of the poor were eligible for poor relief.
The judicial infrastructure of the city of Antwerp experienced comparable evolutions as had the one in Leiden, including introduction of the roll procedure, in 1532. Different rolls were maintained on particular weekdays when certain cases were to be heard. For example, the so-called Monday roll and Wednesday roll were reserved for small claims, which were settled orally and without advocaten or procureurs. Generally, however, the emergence of Roman or canon law as a source of law and of written procedures increased the costs of litigation in Antwerp, especially because (just as in Leiden) legal spokesmen and report fees now had to be paid.Footnote 23
Such developments also occurred in Brussels, the capital of the Habsburg Low Countries. Apart from its political and administrative functions, Brussels boasted a significant textile sector, although compared with Antwerp it employed a smaller portion of the working population.Footnote 24 Like Antwerp, however, the Brussels economy declined during the first half of the eighteenth century, but recovered in the latter half. Industrial restructuring similarly concentrated local workers into large-scale manufactures where they earned markedly low wages.Footnote 25 According to a census of 1755, Brussels hosted almost 60,000 inhabitantsFootnote 26; by 1783, the population had grown to almost 75,000.Footnote 27 As in Leiden and Antwerp, the city's economic recovery did not improve the circumstances of all inhabitants. In 1755, almost 3,500 households received poor relief and 125 households were registered as “beggars”; these households totalled 7% of the total population.Footnote 28 By 1784, however, the proportion of “beggars” had increased from 0.5 to 2.7% of the population, and now totalled almost 2,000 households. It is not clear which segments of the Brussels population were then receiving poor relief.Footnote 29 Despite this widespread pauperism, which had become especially exacerbated during the economic crisis of the first half of the eighteenth century, the urban government did not embark on comprehensive social reforms.Footnote 30
Brussels had boasted a bench of aldermen since the mid-twelfth century. As with the other examined cities, the sixteenth century brought important changes to Brussels' judicial infrastructure, heralded by many adjustments in the preceding century. The roll procedure was adopted as early as the late fifteenth century and written Roman Canon procedures were introduced. The “burgomasters roll” was instituted, in 1585, to address the innumerable petty conflicts brought before the alderman. This roll adopted an oral summary procedure, which did not utilize legal spokesmen. However, such spokesmen became necessary for cases on the other rolls, thereby increasing the costs of litigation.Footnote 31
The Brussels city archives contain an interesting correspondence between the city's bench of aldermen and central governmental institutions regarding the granting of legal aid to the poor. The letters mostly contain justifications from the aldermen for refusing certain petitioners free legal aid. These petitioners had subsequently implored the Privy Council to intervene, whereupon its officials requested the Brussels aldermen to provide an opinion about the supplications. Copies of the aldermen's often elaborate letters of advice regarding non-granting of legal aid have hence been conserved in the Brussels city archives.Footnote 32 These sources offer an extraordinary glimpse into the attitudes of a local government concerning legal aid for the poor.
Similarly illuminating is a collection of correspondence found in the archives of the central governmental institutions of the Southern Low Countries, containing letters and memoranda from officials of the Privy Council in response to petitions for free legal aid. This source also contains relatively extensive considerations about legal aid for the poor, and helps in uncovering the profile of litigants eligible for such aid.Footnote 33 Together, these sources provide a strong basis for ascertaining the procedure and aims of how three particular cities in the Low Countries—a waning textile center, a transforming textile centre, and a capital city—administered legal aid for the poor.
The Origins of Legal Aid to the Poor
In medieval and early modern Europe, the entitlement afforded to the poor (of the personae miserabiles category) for free legal services pertained to natural and divine rights. Medieval religious practices constituted the basis for early modern facilities of legal aid to the poor. Ever since the premodern juridical infrastructure had emerged in the twelfth century, churchmen had held that personae miserabiles should be able to protect their claims in the same way as could more affluent members of the community. Legal aid to the poor is a recurring theme in the Bible and was considered by Saint Augustine to be among the works of mercy. The church resolved in the twelfth century that clerics were to defend the poor for free in church courts. Commentators on canon rights considered any litigation involving the poor and oppressed to be subject to the jurisdiction of church courts.Footnote 34 Clearly, the emergence of the category of personae miserabiles related to tensions between the medieval church and state concerning jurisdiction and authority.Footnote 35
In canon law, personae miserabiles were entitled to procedures that were primarily oral, in which legal advisors were absent. Such privilege was included in the Corpus Iuris Canonici and was later adopted by urban legal administrations.Footnote 36 These special procedures were informed by considerations that personae miserabiles were less able to assume legal fees, and the fact that their conflicts generally related to minor issues.Footnote 37
Churchmen were not the only authorities to have considered the issue of legal entitlements to the poor. Since the thirteenth century, the Spanish royal chanceries had employed abogados de pobres, Footnote 38 and cities elsewhere began to provide similar services, for example in fifteenth-century Northern Italy and in the Savoy.Footnote 39 The first extensive ordinance that Charles V decreed pertaining to the arrangement of civil procedure in the Low Countries, in 1531, included a stipulation regarding legal aid to the poor. Article 21 of the ordinance stated that all employees, advocaten, and procureurs of the princely courts were expected to assist poor subjects “for the love of God”—that is, free of charge—and to do so in the same way that they served the rich. Those who failed to do this would face punishment. Subsequent ordinances from 1558 and 1604 on juridical procedures reiterated this stipulation, although the warning about punishment was omitted. Advocaten were forbidden to refuse poor clients and were required to serve them free of charge.Footnote 40 Various local regulations regarding civil procedure and oaths sworn by urban procureurs and advocaten upon assuming office contained similar phrases as those in the 1531 ordinance.Footnote 41
Thus the “good right” of the weak to obtain legal aid was included in sixteenth century regulations restructuring civil procedures. However, until the eighteenth century, the only official regulation about legal services to the poor concerned the fairly vague obligation for officers and servants of law courts to serve such people. Formal regulations usually included only minor or intangible sanctions for noncompliance with this guideline. The seventeenth century author de Wynants, for example, opined that practitioners who refused to serve the poor would have to justify themselves before God.Footnote 42 However, as evidenced by a late seventeenth century litigant's testimony about the utter disinclination of Brabantine rural courts and their practitioners to provide poor litigants with legal aid,Footnote 43 few practitioners were much troubled by such repercussions. Joanna Catharina Huijbrechts, a single mother of five young children in Antwerp, similarly lamented in 1726 that even an impoverished woman in her circumstances could find no support from any advocaat or procureur although “according to law and because of Christian love they are required to help the poor.”Footnote 44
However, in many law courts across the early modern Low Countries, poor litigants could and did acquire free legal aid that had developed through practice, although they did so in limited numbers, as will be explained. Generally, litigants did not depend (solely) on the willingness of individual advocaten and procureurs to provide legal aid. More often than not, the law court assigned the advocaat and procureur who would serve the poor litigant. In Leiden, Antwerp, and Brussels, the city government—which also acted as a local law court— decided, upon receiving a formal petition for such aid, whether the petitioning party was entitled to assistance.Footnote 45 Some law courts—for example, in Diest—assigned their most junior advocaten and procureurs to serve poor litigants. Other courts—such as the Court of Holland—randomly delegated such services to the advocaten and procureurs it employed.Footnote 46 Performance on behalf of poor litigants was monitored by colleagues and by the judges of the law courts.Footnote 47
In addition to the efforts undertaken by law courts to provide free legal aid, numerous cities in the Southern Low Countries also witnessed, in the sixteenth and seventeenth centuries, the emergence of legal confraternities devoted to Saint Yves.Footnote 48 Saint Yves had been a lawyer in the thirteenth century; he was canonized in 1347 by merit of having devoted his life to providing legal aid to the poor.Footnote 49 Generations of law practitioners henceforth followed his example, and, at least in Antwerp, Mons, and Ghent, the Saint Yves confraternities actively engaged in such activities. The renewed vigor in the veneration for Saint Yves should be considered part of the Counter-Reformation's revitalizing of faith and religion-inspired community building. For example, in 1630, the Antwerp bishop Johannes Malderus urged local practitioners to provide legal aid to the poor. In 1677, the advocaten of the Council of Flanders petitioned the Pope to establish a confraternity whose explicit purpose would be organizing legal aid to those who could not afford it.Footnote 50 The resultant confraternity assigned ten advocaten and eight procureurs for these purposes.Footnote 51 To what extent did poor households draw upon these facilities?
The Limited Use of Legal Aid for the Poor
Ascertaining an overview of the number of pro deo litigants at early modern law courts is a problematic undertaking. In theory, the lawsuits waged pro deo should be identifiable from the roll registers, which recorded the names of parties for each day's court proceedings. However, these registers contain hundreds of entries per year. Moreover, in cataloguing the litigants, each registered name must be accurately entered into a database, so as to prevent overlapping counting of parties who appeared in multiple court cases.
Another research strategy, applied only to Leiden, was adopted: this involved checking the temporal distribution of the 402 petitions for free legal aid that were submitted to that city's bench of aldermen over the years 1751–1810.
Table 1 Temporal Distribution of the 402 Petitions for Free Legal Aid that were Submitted to The Bench of Aldermen of the City of Leiden over the Years 1751–1810.
Source: Regionaal Archief Leiden (ORA), Oud Rechterlijk Archief (ORA), inv. nrs. 144A-144O, Registers van dispositiën op rekwesten, 1659–1810.
These figures show the strikingly small extent to which households sought free legal aid to settle their conflicts. Only between three and eighteen requests for free legal aid were filed yearly, from among a population ranging from 38,105 inhabitants in 1750 and 31,676 inhabitants in 1809.Footnote 52 The limited number of pro deo litigants is all the more surprising in view of the sizable numbers of poor households in eighteenth-century Leiden.
Although no exact figures are available for how many pro deo litigants were seen at other law courts, archival evidence suggests that these numbers were also generally low. Documents containing overviews of fees payable by litigants at the Council of FlandersFootnote 53 and in RotterdamFootnote 54 yield only a few pro deo cases yearly. The so-called furnissementsboeken of eighteenth century Antwerp also offer an overview of such fees, and, likewise, record few pro deo cases.Footnote 55
Despite the clear benefits that free legal aid afforded to them, poor households appear to have made relatively little use of the option. This can be explained by factors on the demand side (reluctance of poor households to make use of legal aid), as well as by factors on the supply side (reluctance to provide legal aid to the poor). I will first discuss possible factors on the demand side. Factors on the supply side will be discussed in the next section of this article.
Apart from the cost of litigation, there are three major reasons why poverty-stricken households would have been discouraged from turning to law courts to settle disputes. First, such parties may not have owned adequate possessions to trigger disputes. For example, households with limited resources entered into fewer contractual agreements than did wealthier ones, and were thereby less often involved in the sorts of conflicts that led to lawsuits. Second, the complexity and lack of transparency of legal procedures possibly hampered inclination to consider judicial action.
Third, there may have been a sociocultural gap between potential litigants and those who dispensed the law, which was daunting for those of lower social groups. Recent research on the social composition of the plaintiffs (and defendants) of the mid eighteenth century Leiden Peacemakers court provides indirect evidence for such gap. The Peacemaker court was a small claims court that boasted a strikingly quick, inexpensive, and transparent oral procedure that was based on “good judgment” rather than formal law. Therefore, all inhabitants of mid eighteenth century Leiden could easily afford litigation at the Peacemaker court, even for very small claims, and even if they were illiterate. Nonetheless, those among the lower 60% of households (the less wealthy) scarcely used this particular small claims court. Only 2% of all plaintiffs belonged to the (poorest) bottom quintile of the households of Leiden's population, whereas at least 84% of the plaintiffs were from the most affluent 40% of households. The Leiden Peacemakers court was, therefore, a distinctly elitist institution, even in light of its low cost and markedly transparent procedure.Footnote 56 For mid eighteenth century Leiden at least, this provides indirect evidence that the limited use of free legal aid can be explained to some extent by a sociocultural gap between, on one hand, poor households and lower middling groups and, on the other, the elite groups who staffed the law courts and starkly predominated among plaintiffs and defendants alike. Direct research into the attitudes of the lower social groups toward the law should be conducted, to further corroborate this interpretation of the low participation of those groups in litigation.
Nonetheless, some poor people did find their way to the law courts. Some of these households may have made use of law courts and disbursed the requisite report fees and seals, as most lawsuits served primarily to pressure the defendant into reaching an out-of-court settlement. Often, fees had to be paid only upon conclusion of the lawsuit; as such, people who anticipated winning their case would often accept the financial risks involved, being confident that the opposing party would pay the legal expenses. Therefore, people who initiated lawsuits did not necessarily expect to bear the related costs, and this helped significantly to render lawsuits a financially viable option for households of little means. For example, in 1734, Jan Vermeulen, a poor inhabitant of the Flemish village Etikhove, sought legal aid at the Saint Yves confraternity, but not until he had already commenced a lawsuit at the Council of Flanders. He clearly intended this legal action to function as a forceful threat by which to compel the opposing party to execute a particular mutual contract; Vermeulen was astonished, however, when his adversary refused to recognize his own signature on the contract in question, thereby entailing that the lawsuit would have to be pursued until the matter was fully adjudicated.Footnote 57 Some litigants petitioned for pro deo assistance during the course of a trial, their poverty having been caused by the many legal costs they had to bear for the ongoing case.Footnote 58
Therefore, the limited extent to which poor households found their way to law courts (even the inexpensive ones), despite the fact that they could initiate lawsuits without incurring immediate expenses, goes far in explaining why so few litigants sought free legal aid. However, there are elements at the supply side of the legal system as well, that help to explain the limited use poor households made of legal aid. Therefore, the procedure for obtaining legal aid for the poor is revealing as well, both as concerns the low numbers of litigants who opted to use it and as concerns the attitudes of local and “national” governments regarding the public accessibility of their judicial infrastructures.
Obtaining Legal Aid
To obtain free legal aid in the eighteenth century, litigants typically had to first submit a request to the law court where they wished their case to be heard. These requests were intended to function not as a process for obtaining special favors, but rather as a means to exercise a natural right. Central government officials in Brussels forwarded petitions for free legal aid to the appropriate law courts, as petitioners were mistaken in thinking such authorization was simply an automatic matter of grace: if the request failed to meet the stipulated criteria, a judge could deny the petitioner all “benefices” of free legal aid.Footnote 59
The natural right of the poor to free legal aid did not imply that such aid was routinely granted. Several conditions had to be met for a litigant to be eligible for pro deo consideration. First, the case had to be justified. Litigants, therefore, sometimes solicited initial assistance from one or more advocaten, who examined the available evidence and provided an endorsement for the defensibility of the case. Numerous litigants in eighteenth century Antwerp found advocaten prepared to deliver such statements, which they attached to their petitions.Footnote 60 Otherwise, the law court assigned two or even three advocaten to examine the case. The bench of aldermen in Brussels, for example, followed such a procedure. The aldermen expected advocaten to be discreet about such statements, and it was considered highly inappropriate for litigants to be notified of favorable advice when the aldermen had in fact refused to grant legal aid.Footnote 61 In Leiden, the magistrate also asked one or two advocaten to assess the legitimacy of the petitioner's claim.Footnote 62
The second prerequisite for obtaining free legal aid was that the litigant be “genuinely destitute.” In Brussels and Antwerp, litigants often submitted a certificate of poverty, granted by a clergyman.Footnote 63 Litigants from Brabantine villages who sought to file pro deo lawsuits at the Council of Brabant also obtained certificates from local clergymen or from their local bench of aldermen.Footnote 64 However, there were other ways of ascertaining the poverty of petitioners. In certain cases in Antwerp, a commissioner from the bench of aldermen was assigned to review the petition and assess the litigant in person to corroborate that the party was genuinely poor.Footnote 65 In Leiden, the advocaat tasked with checking the justifiability of the petitioner's claim was also expected to corroborate the petitioner's adverse circumstances.Footnote 66 A third condition for granting free legal aid was that the other party involved in the case be heard. This allowed for verifying the first two conditions, as well as for trying to reconcile the parties, so as to render the proposed lawsuit unnecessary.Footnote 67
Therefore, in Brussels and Antwerp the petitions for free legal aid were often accompanied with additional certificates verifying the petitioners' claims. In Leiden, this was generally not the case: the Leiden magistrate alone checked whether the request met the stipulated conditions. Only when litigants wished to pursue a lawsuit at a court outside their hometown or at the Court of Holland would the litigant include a letter of endorsement (brief van voorschrijvinge) from the local aldermen, in which it was declared that free legal assistance would have been granted had the case been tried locally.Footnote 68
Who did clergymen and aldermen consider “genuinely destitute,” and what sort of poverty justified endowment of legal aid? The relatively small number of requests for pro deo assistance implies that only limited segments from among the great numbers of poor households found their way to the law courts as a result of having been granted legal aid. The rich historiography on poor relief in early modern communities allows for postulating the social identity of pro deo litigants. After all, assisting the poor in their legal dealings was, in the Catholic Southern Low Countries, considered a work of mercy. The invigoration of the Saint Yves confraternities as part of the Counter-Reformation likewise evidenced such reasoning.Footnote 69
In the early modern period, a moral distinction was made between so-called “deserving” and “undeserving” poor. The latter comprised a sizable group of vagrant and itinerant poor people; these persons were considered a threat to order and stability and enjoyed few entitlements to relief. The former—the “respectable,” “deserving,” or “house poor”—consisted largely of households from the local community; their poverty was considered to have been caused by misfortunes for which they were not at fault.Footnote 70 The provision of relief to these latter categories of the poor and its general denial to others constituted an important element of early modern community building.Footnote 71
Charity was, therefore, not necessarily bestowed on the households who most needed it, nor did subsistence poverty automatically entitle households or individuals to relief. Sandra Cavallo has developed the clearest exposition for this, specifically for eighteenth century Turin; however, it also applies to the Low Countries.Footnote 72 Cavallo stressed that it was expected that poor relief would be directed to “normal” households who had fallen victim to natural disasters such as illness, death of the head of the family, or difficulties of a temporary or seasonal nature. As such, relatively affluent households who suffered sudden disaster enjoyed better prospects for obtaining relief than did households whose basic socioeconomic structures (including low household income, for example) rendered it difficult to make ends meet over extended periods. Such views on charity mirrored ideological perspectives that evidenced consideration of a rigid social order. Poor relief, in this respect, was intended to confirm social hierarchies rather than to remedy social inequalities.Footnote 73
Such an outlook is exemplified by the social category of the so-called “shamefaced poor” in early modern cities. This group encompassed poor households who had formerly belonged to more affluent middling groups among the urban citizenry, but who were now, owing to misfortunes such as disease or the death of a family's main income earner, unable to financially maintain their earlier status. The “shamefaced poor” referred to such people who, being too discomfited and humiliated by their reduced status to openly approach charity institutions, were allowed to receive alms surreptitiously. Urban authorities thereby protected the secret of these people's actual socioeconomic conditions and, therefore, their reputations.Footnote 74
The literature on the so-called personae miserabiles indicates that similar considerations were fundamental in granting privileges to poor households for their legal affairs. Richard Helmholz has detailed criteria that emerged in Canonical Law regarding the poverty suffered by personae miserabiles: poverty was judged by the party's current means; assets that did not yield ready cash were disregarded. For example, a widow who possessed real estate but had insufficient money to purchase necessities was, therefore, considered poor. Also, poverty was judged on a sliding scale, such that even people with considerable assets could be deemed “poor” if they became unable to live according to their station.Footnote 75
Simona Cerutti's findings for eighteenth century Turin show that similar considerations informed early modern practices of poor relief.Footnote 76 In Turin, the category of misérables who were entitled to summary procedure comprised a diverse set of people, including widows, orphans, minors, and the “poor,” as well as merchants, soldiers, pilgrims, and foreigners. These diverse social groups shared a common characteristic not of material dispossession but rather of scarcity of relational and social resources. Such groups could not be expected to effectively press their cases through legal claims, especially as their “misery” was primarily related to “incompetence” regarding local norms and laws and a lack of relational resources. A more suitable summary procedure for such litigants was one that leaned more toward natural law than towards positive law. Also, the “poor” in this category were not necessarily the community members most deprived of means of subsistence, but rather those who had suffered sudden and unusual deprivation.Footnote 77
In all probability, similar ideas about the nature of poverty and the entitlement of the poor to legal aid existed in the Low Countries. This can be derived from the narratives offered in the consulted petitions for free legal aid in eighteenth century Leiden and Antwerp and from the source material examined for Brussels. These sources contain ample and often explicit explanations of how sudden misfortune had caused the poverty of the petitioners. Strikingly, some of the petitioners' litigation concerned substantial possessions and assets, testaments to their former wealth.Footnote 78 For example, in Leiden in 1781, a certain Alida van der Linden successfully petitioned for free legal aid at the bench of aldermen in the matter of a conflict concerning sale of a house she had inherited.Footnote 79
These contemporary perspectives on “poverty” should caution legal historians against straightforward assumptions that eligibility for legal aid was considered a fundamental right of every person. Despite rulers and monarchs paying lip service to the importance of justice being accessible to all subjects, only limited segments of the poor were in fact considered personae miserabiles. Therefore, from the supply side of legal services, the most destitute could not necessarily presume reliance on legal aid.
Admittedly, only a limited number of petitions for pro deo assistance were summarily rejected. Most petitions received provisional approval, as will be explained in the next section. A number of rejected requests for pro deo assistance are easily traceable in legal records. The Brussels archives offer a number of grim examples of the attitude of the local government. In 1758, for example, Lovinus Soffray, a Brussels citizen and master saddler, sought legal assistance at the Brussels court of aldermen, in an attempt to overturn a fine of 25 guilders imposed by his guild. Soffray attached a certificate of poverty from a local clergyman to his petition, and two advocaten endorsed the justifiability of his case. However, the city government refused to confer the requested assistance, but did allow the guild to use its own funds to take legal action against Soffray. The city government stated that Soffray had evidently trespassed guild regulations, rendering his defence superfluous. The statements of the advocaten were of little significance against the conclusions of the judges. According to the aldermen, the bestowal of the pro deo implied a provisional verdict. Moreover, the city government “had been informed” that Soffray was financially competent to assume the costs in question, regardless of the certificate of poverty provided to him by a priest. In short, the authorities argued that they could not allow him to “pressurize” his opponents “without risk,” that is, without his facing the costs for taking legal action.Footnote 80
Nonetheless, the great majority of the petitions for free legal aid that were found in the archives of Antwerp and Leiden were provisionally approved.Footnote 81 This tendency has also been more generally established for petitions filed to urban governments. In all probability, petitions that were unlikely to be approved were discarded earlier in the petitioning process. Petitioners who filed to governmental institutions at local or “national” levels more often than not employed intermediaries and even professional lobbyists. Such agents ensured that petitions were drafted correctly and reached the appropriate desk.Footnote 82 Conceivably, such intermediaries were familiar with the relative prospects of the various types of requests and notified applicants whose requests stood little chance of success. As such, it is feasible that the large collection of approved petitions is somewhat biased. Moreover, it is possible that rejected petitions were customarily returned to the petitioner, thereby leaving no traces in the archives. Therefore, the provisional approval of most petitions for pro deo assistance does not exclude the possibility that legal aid was restricted to particular subsections among the poor, notably the so-called “deserving poor.”Footnote 83
Benefits and Hazards of Legal Aid to the Poor
Obtaining the right to litigate pro deo could serve as a highly effective means by which poor litigants could try to persuade alleged offenders to address the contention in question, before the incident was heard in court, and even to temporarily remedy their own precarious personal circumstances. A case at the Court of Utrecht in 1767 provides a clear example of the potential benefit of obtaining free legal aid. Anthonia van de Linden had pursued legal recourse at the Court of Utrecht after having failed to peaceably retrieve a sum of 30 guilders she had advanced to her father and stepmother. Her stepmother was summoned to face the complaints, but refused to yield or acknowledge any wrongdoing. However, when Van de Linden subsequently obtained the right to wage a lawsuit pro deo, her stepmother returned the loan forthwith.Footnote 84 Households made use of the pro deo procedure to obtain overdue wages, and young impecunious women applied it as a means to forcefully hold fathers of illegitimate children to their responsibilities. Some litigants took pro deo legal action as part of attempts to claim (often substantial) inheritances, which offered potential means to escape from poverty.
Litigants who undertook formal legal actions faced a broad range of attendant costs. In the eighteenth century, all court documents were required to bear a seal that cost a few pennies. Furthermore, fees were to be paid to various officials, including messengers and clerks, whose incomes depended largely upon receipt of such payments. The parties also financially compensated witnesses who testified during the lawsuit. There were also fees for procureurs and advocaten; their charges could include various services, such as writing and submitting court documents, or attending court sessions. Therefore, in theory, litigants who obtained free legal aid could wage their lawsuit free of charge, such that payments for the services of procureurs and advocaten and for seals and various remunerations to court officers were exonerated.Footnote 85
However, pro deo assistance did not automatically waive all litigation-related costs. For example, litigants at the Council of Flanders who obtained pro deo assistance enjoyed exemption only from having to pay for seals affixed to documents. If such litigants wished to have free assistance from a procureur and advocaat, they needed to address the Ghent confraternity of Saint Yves. It took the aforementioned Jan Vermeulen a full year before he was able to obtain the latter kind of aid, although the Council of Flanders had granted him exoneration from the cost of seals from the start.Footnote 86 The urban benches in Brussels, Antwerp, and Leiden offered pro deo litigants exemption from report fees (or at least the payment of seals) and from the services of legal spokespersons.Footnote 87
However, there are many indications that costs were nonetheless charged. The documents examined for eighteenth century Brussels contained several examples. In 1770, Barthelemi Hartogh obtained legal aid for a testamentary cause, yet subsequently learned, to his chagrin, that he would have to pay report fees before he could obtain the verdict. Not surprisingly, he was unable to pay these fees, not least considering that he already had to beg for bread to feed his seven children. Stephanus Bianchini and Claudine Hughs faced a similarly precarious financial situation in 1771 when they petitioned the central government to order the Brussels bench of aldermen to acquit them of these costs. The latter body objected to the claim that this procedure had been followed “within living memory.”Footnote 88
Other examples relate to the High Court of Utrecht and the Court of Flanders. Litigants for small claims who reached a favorable agreement at the High Court of Utrecht saw part of their awarded sums applied to procedural costs, even when they had applied for pro deo assistance. In 1767, the former employer of the farmhand Jan Putters agreed, in the presence of a judge, to pay Putters 7 guilders of 11 guilders in outstanding wages. However, Putters had to immediately pay 1.6 guilders of the awarded sum to the procureur who had helped him at court.Footnote 89 This was hardly a substantial amount of money, although for Putters—who had thought it worthwhile to pursue legal action for a claim of 11 guilders—it was a significant price to pay for remuneration of his income.
Pro deo litigants at the Council of Flanders also faced numerous expenses, even after exoneration of the costs of seals and legal representatives. In 1733, the Ghent Saint Yves Confraternity petitioned the central government to order the Council of Flanders not to charge the usual array of report fees to litigants who had obtained the pro deo procedure. A decree to this end was published in 1733.Footnote 90 However, the list of expenses for at least one pro deo lawsuit waged at the Council of Flanders between 1733 and 1741 shows that the officials of the Council nonetheless received all due payments.Footnote 91 In 1791, three defendants who had obtained free legal aid at the Council of Flanders (so as to contest criminal charges against them) were subsequently required to pay 12 guilders in so-called “report fees” and remuneration to the three advocaten who had declared their case admissible.Footnote 92
Pro deo litigants also risked incurring even further liabilities. Such assistance was always and explicitly granted provisionally; however, as noted, an important condition in obtaining such aid was that the case was in fact warranted. If, in the course of the lawsuit's proceedings, the position of the opposing party gained conclusive leverage, the pro deo support could be re-evaluated or withdrawn. Such a situation faced a German pro deo litigant who, in 1761, had waged a lawsuit at the Council of Brabant to obtain payment for provisions delivered to the French army.Footnote 93 Likewise, a pro deo party who was ruled against could be held accountable for legal costs. For example, in 1758, Johanna Latterman was allowed to pursue charges pro deo at the Amsterdam bench of aldermen against another party for alleged “defloration”; the defendant, however, swore that he had never had sexual relations with her, and she was subsequently required to pay the case's legal fees.Footnote 94
In the Southern Netherlands, eighteenth century officials of the Privy Council distinguished between the pro deo procedure and the right to take legal action sous notice. In pro deo procedures all costs were (in theory, at least) acquitted; in sous notice cases, however, careful note was taken of any suspended report fees and unsettled remuneration to advocaten and procureurs. The losing party was required to pay all such costs, even if the litigant had obtained the right to wage the lawsuit sous notice, because losing such a case indicated that the conditions of the claim being valid and justified had not actually been satisfied. Similary, the right to the sous notice could be withdrawn during the proceedings (before the verdict) if the position of the opponent appeared to become irrefutable.Footnote 95
The widow Dolvis of Brussels was confronted with such situation in 1749. Poverty had compelled her to cancel a rental agreement with a certain Le Francq, another widow, who consequently undertook legal action for unlawful breach of contract and rent arrears. In the ensuing lawsuit, Dolvis first obtained the right to defend herself sous notice, but this right was withdrawn a few months later, and she was required to pay a caution of 30 Ecu. Unable to provide such a sum and having nobody to stand surety for her, Dolvis used her few possessions as surety.Footnote 96 In 1757, Philippe Devuyst, another citizen of Brussels, unlawfully left his wife but obtained the right to defend himself sous notice in the ensuing court proceedings. However, after a commissioner of the city government heard testimony from Devuyst's neighbours and close friends, the permission was withdrawn, on grounds that his petition to the city government had presented a clearly “fantasized” version of the conflict.Footnote 97
Although Brussels officials at local and central levels stressed the distinction between pro deo and sous notice, the evidence suggests that outside Brussels the appellations were fairly synonymous, with the pro deo being as provisional and conditional as the sous notice. A closer look at the examined ninety-seven petitions for legal aid in eighteenth century Antwerp reveals that the litigants always applied for pro deo assistance, and typically received the explicitly provisional right to litigate pro deo ou sous notice until the opposing party had submitted a “rescription,” an official response to the petitioner's grievance.Footnote 98 In the legal records of Amsterdam, Leiden, the Court of Holland, and the court of Utrecht, only the term pro deo is included; however, it appears to have stipulated the same conditions as did sous notice. However, in Brussels, there were instances of litigants petitioning for the right to wage a lawsuit pro deo or at least sous notice;Footnote 99 as such, the distinction appears to have remained in force there.
The provisional nature of the dispensation to pursue litigation at no financial cost may have been an important reason why poor households were reluctant to seek pro deo assistance. That the assistance could be withdrawn in the course of the lawsuit evidently represented a significant risk. Moreover, even if their case was deemed to be justified, such litigants could still lose the suit for procedural reasons. In 1736, Cathérine Melaen waged a pro deo lawsuit at the Council of Brabant against a former debtor of her deceased father, seeking to obtain a sum of no less than 20,000 guilders. In endeavoring to convince the judge of the lawfulness of her claim, she provided sworn testimonies from a range of people knowledgeable about the case. However, civil procedure at the Council of Brabant determined that such proof was not authorized for such a large claim. Melaen lost her case and the judge was left to decide which party would pay the incurred legal costs of more than 600 guilders. Fortunately for Melaen, the judge considered her case justified and, to the shock of the opposing party, consigned all the case's legal expenses to him.Footnote 100 She was fortunate in this respect, as a less lenient judge would have saddled her with the costs, regardless of her financial circumstances.
However, other evidence suggests that such leniency for pro deo litigants was generally quite limited. Notwithstanding the myriad opinions voiced in favour of the poor not being excluded from obtaining their “good right” in the law courts, contemporary officials and observers exhibited little tolerance for those who opted to pursue such rights. In the early modern period, there was fairly widespread intolerance for people who, in excessively exploiting their access to the law courts, supposedly instigated conflicts and deliberately threatened the peace and harmony of the community. However, such prejudices did not impede massive reliance on law courts on the part of people from all walks of life, especially during the long sixteenth century.Footnote 101
Poor people who used law courts to settle their conflicts were common targets of these prejudices and, therefore, were more likely to suffer the disadvantageous effects of such intolerance. Joos De Damhouder's famous late sixteenth century work on civil procedure includes passages characterizing the poor as more “fervent to plead” than the rich.Footnote 102 Commenting on the 1604 Ordinance on civil procedure in the Catholic Netherlands, the previously mentioned observer de Wynants stated that poor litigants were generally “troublesome, wicked folks and pleaders of bad faith. (…) They often start lawsuits to subject their opponent to their claims, they often act out of vengeance and they seek to impose excessive costs on their adversary that cannot be recuperated after they lose their trial, in view of their state of poverty.”Footnote 103
These observations about how law courts were allegedly misused by the poor are echoed in the occasional writings of various officials who were regularly confronted with poverty-stricken litigants. In 1765, the Brussels city government claimed that the majority of litigants were people who faced financial hardship in taking legal action; the city government insisted, however, that such hardship was not a valid reason for randomly allowing individuals the right to wage lawsuits free of charge, not least as these proceedings imposed great strains on the opposing parties. According to the city government, only litigants who were absolutely unable to shoulder the costs of a lawsuit should be granted this right. In the view of the Brussels aldermen, haphazardly or otherwise inefficiently conferring pro deo counseling on those who requested it would soon lead to respectable people being daily disturbed in matters regarding their possessions and peace of mind; such harassment would be undertaken by pro deo litigants, who would quickly grow in number because of the impunity regarding the costs of waging lawsuits. The Brussels aldermen deemed it essential to be highly skeptical of the “false pretences” often maintained by poor litigants petitioning for legal aid.Footnote 104
Pro deo litigants were especially disadvantaged in seeking to repeal unfavorable sentences, particularly in Brabant, even despite the fact that plaintiffs eligible for free legal aid were entitled to be heard in first instance at courts of appeal. For example, the customary law of the Bailiwick of Bois-Le-Duc upheld the privilege of widows, orphans and other personae miserabiles to bring their cases to the court of aldermen of Bois-le-Duc. Similar privileges were granted at High Courts.Footnote 105 However, using High Courts as courts of appeal was difficult for poor litigants, as legal aid was rarely granted for appeals. De Wynants, observing the workings of the Council of Brabant in the early seventeenth century, opined that those who could not cover the costs of an appeal should content themselves with having lost their case only once and with having forced the other party to pay useless expenses for a vexatious lawsuit.Footnote 106 This stance reiterates the view that obtaining pro deo legal aid implied a provisionally favourable judgment, which could hardly be maintained for cases that were lost in first instance.
However, even litigants who won their pro deo case in the first instance but had to defend it further at a court of appeal also experienced difficulties in obtaining legal aid for the subsequent proceedings. In 1753, widower Christophorus Philippi won a pro deo case at the bench of aldermen of Ruisbroek, a small village in the vicinity of Brussels. The case related to taxes on a piece of land claimed by a local lord, who subsequently appealed the ruling to the bench of aldermen in Brussels. The Brussels aldermen refused to grant Philippi legal aid for the appeal, as he did not meet the condition of poverty. He possessed land, and litigants had to pay legal costs if they held possessions that could be used for that purpose. The aldermen, although they acknowledged that Philippi's land yielded minimal produce and that it “could seem odd that the supplicant should lose the property the lawsuit was waged for, only to be able to cover legal costs,” nonetheless insisted that he pay his part of the report fees, amounting to 560 guilders. This ruling surprised Philippi, especially as he had received pro deo assistance at the Ruisbroek bench of aldermen.Footnote 107
Litigants who appealed to the High Court of Holland likewise assumed that being granted pro deo assistance at a lower court was assurance of receiving such legal aid at the court of appeal. In contrast to the previously noted cases from Brabant, in Holland such expectations were usually satisfied. Johanna Latterman, after losing a case at the bench of aldermen in Amsterdam, appealed to the Court of Holland by using pro deo assistance.Footnote 108 In 1756, Lijntje Wavers appealed a case (against the alleged father of her illegitimate child) that had been decided against her at the bench of aldermen of Schiedam. She attached the “act of authorization” for free legal aid in Schiedam with her request to the Court of Holland, which subsequently granted her request for legal aid.Footnote 109
Although legal aid to the poor bore many similarities in courts of various institutional levels across the Low Countries, the degree of leniency regarding poor litigants varied. Whereas the court of aldermen of Ruisbroek found no objection to providing Christophorus Philippi with legal aid, despite his holding land, the Brussels bench of aldermen judged his situation differently. According to de Wynants, the Council of Brabant refused to consider requests for pro deo assistance for ongoing lawsuits, so as not to undermine the legal position of the opposing party.Footnote 110 However, the Antwerp bench of aldermen saw no harm in such a course of action. In June 1731, it granted the miller Gerard van Lathem pro deo assistance after a year of unending legal disputes with the Millers guild.Footnote 111 Also, the Brussels city government considered provision of pro deo assistance to be a provisional judgement in favor of the pro deo litigant. In Antwerp and Leiden, however, there are numerous instances of both parties receiving pro deo assistance, which evidenced a different interpretation.Footnote 112 Litigants who had successfully requested pro deo assistance from lower courts were understandably surprised when they were subsequently held responsible for payment of report fees at the bench of aldermen in Brussels. Elsewhere, such fees were not charged to pro deo parties.
These variations are indicative of how the pro deo procedure evolved in practice and that, at least until the eighteenth century, it was scarcely subject to formal regulation. Customary law rarely addressed the accessibility and viability of local law courts to poor people.Footnote 113 The extensive ordinances promulgated in 1531, 1558, and 1604 regarding civil procedure contained only the previously described vague stipulation that advocaten, procureurs, and officials of the law courts were to serve the poor for free. There were occasional stipulations regarding court accessibility for the poor, but no bylaw was ever published in the Southern Low Countries or in the Dutch Republic that stipulated precisely what the pro deo procedure comprised. Revealingly, the decree promulgated in 1733 at the request of the Ghent Saint Yves confraternity addressed only pro deo assistance to clients of that particular confraternity.Footnote 114 Otherwise, the granting of pro deo assistance was left to the discretion of judges.
There is evidence, however, that regulations for the pro deo procedure emerged during the eighteenth century. In February 1703, for example, the city government of Antwerp submitted a letter to the Council of Brabant, querying whether poor people who availed themselves of pro deo entitlements were obliged to pay for the newly introduced “small seal” for official documents. After seeking the opinion of the States of Brabant, the Council of Brabant allowed for poor litigants to be exempted from such taxes, and seized the opportunity to establish rules regarding the pro deo procedure, so as to prevent abuse of it. Henceforth litigants could receive pro deo assistance at Brabantine courts only after having filed a petition with a certificate of poverty and after one or more advocaten had confirmed the justifiability of the case; only then would written approval be granted for taking pro deo legal action. A letter announcing these rules was sent to the authorities of local courts in Brabant.Footnote 115 This memorandum, prompted by a new administrative tax, was, for Brabant at least, the first formal and general directive regarding the pro deo procedure.
Although similar provincial stipulations have not been found regarding legal aid for the poor in the Dutch Republic, it appears that increased formalization of the procedure occurred there as well. For example, in 1779 and 1785, two Amsterdam regents described in great detail the myriad specifics for how litigants obtained pro deo assistance at the bench of aldermen in Amsterdam.Footnote 116 Also, the sizable collection of petitions submitted to the Leiden bench of aldermen ranges from the years 1659 to 1811. Beginning with the submissions from 1751, the collection systematically contains formal petitions for obtaining access to pro deo assistance. This is a strong indication that increased formalization emerged from the mid-eighteenth century onward. Granting of the pro deo procedure had probably been done more informally before 1750. This development corresponds to a wider progression of increased formalization in the process of petitioning during the early modern era.Footnote 117 Formalization did not diminish the barriers for the poor to draw on legal aid. Granting the right to litigate pro deo still was at the discretion of the individual law courts and judges, who largely used their own interpretation of the criteria.
Conclusions
Whereas early modern rulers ostensibly expected their judicial officials to serve the poor in the same way that they served the rich, those rulers exerted little effort to guarantee the accessibility of their law courts. Analysis of legal aid for the poor in the early modern Low Countries indicates that accessibility to law courts was restricted for poor households, although there are many examples of poor, often illiterate litigants who successfully navigated their way through the law courts so as to settle disputes and make claims. However, the numbers of pro deo cases heard at a range of law courts in the Low Countries were low, particularly in relation to the local demographic weights of the poor.
This article has argued that early modern rulers and their law courts only targeted limited sections of the “the poor” to be eligible for legal aid. The “deserving poor” were common candidates for legal aid, unlike the itinerant poor, although the latter faced the greatest hardships. The petitions for free legal aid consulted for this article reveal that pro deo litigants often pertained to households who had previously enjoyed secure financial status but had become impoverished as a result of sudden misfortune. This indicates that rulers, their courts, and court officials granted legal aid first and foremost to limited sections of impoverished households in the community, so as to confirm social hierarchies and reinforce the division between who was included in the community and who was not. Granting legal aid to the poor was, therefore, not aimed at lowering the entrance bar of the judicial infrastructure for the poor, or at helping the poor to use judicial infrastructure to improve their circumstances. However, as with other forms of poor relief to the deserving poor, it was a major factor in practices of community building.
Although the policies of law courts were intended to grant legal aid to the poor only to limited extents, there appeared to be relatively little demand for such assistance. This article has argued for further research into the likely existence of a sociocultural gap between the large social segments of poor households, on one hand, and the elites and higher middling groups, who dominated the law courts, on the other hand. However, the limited use of the pro deo procedure can also be attributed to its characteristics. Availing oneself of the procedure posed risks, especially financial ones, because it was always granted provisionally. Legal aid could be withdrawn, even before a verdict had been rendered, if a pro deo litigant's case began to appear less justified than first assumed. Moreover, litigants who were entitled to pro deo assistance could still find themselves facing unexpected costs. The fact that relatively few people pursued the pro deo option was, perhaps, self-reinforcing. The fact that most poor people had few, if any, peers who had opted to turn to the courts heightened the threshold against their resorting to legal actions.
The examination of law courts in three cities, extended with research into a selection of additional law courts at urban and regional levels, has illustrated variations in the nature of the pro deo procedure across the Low Countries. This nonuniformity stemmed primarily from the fact that only the judges of the relevant law courts were considered qualified to assess whether litigants were eligible for free legal aid, such that central regulations regarding legal aid for the poor were hardly promulgated. There is one striking difference in how legal aid was provided in the Dutch Republic versus in the Habsburg Low Countries, notably that pro deo litigants in the north faced fewer difficulties in obtaining further legal aid to proceed with appeals. Otherwise, legal aid to the poor was as provisional, and therefore as risky, as in the south.
