Foreclosures foregone

Default, prosecution, and leniency in a village in Holland (sixteenth century)

Jaco Zuijderduijn

Leiden University

Paper for the workshop ‘Mortgages in the European countryside, 1200- 1700’, Cambridge 13

July 2015

First draft, please do not quote without author’s permission

Abstract: Mortgages, defaults, and foreclosures of real estate have often been linked to the decline of

peasant smallholding, and the rise of commercial farms run by townsmen, and operated by landless

labourers. However, little is known of how mortgage law was applied in practise, and to what degree

it contributed to what has been called ‘peasant expropriation’. This paper presents a number of case

studies, focusing on villagers that lost real estate during the process of expropriation for debt. It finds

that there were large differences between the legal rights creditors held to pursue foreclosure, and

their ability to execute these. This was due to two characteristics of mortgage contracts: first, judges

at local law courts had to authorize foreclosure, and as a result the execution of mortgage law was at

their discretion. Second, judges looking to apply leniency were helped by the fact that mortgage

contracts usually combined special and general mortgages. This allowed judges to only allow seizure

of movables, thus preventing large-scale expropriation of real estate. As a result, the number of

foreclosures of real estate was rather modest, and was mainly applied in exceptional circumstances,

such as debtors fleeing their creditors.

In the sixteenth century the countryside of Holland – the Western part of the present-day

Netherlands – experienced a fundamental transition from a late-medieval society of peasant

smallholders, to an early-modern society of landowning farmers. Jan de Vries, who was the first to

study this development, spoke of a ‘thoroughgoing transformation of the rural economy’ between

1580 and 1670. He also indicated that the this transition started earlier.1 The past decades historians

have indeed found evidence for an earlier start of the transformation of Holland’s countryside. They

situate the concentration of landownership in the hands of urban investors and institutions, such as

churches and monasteries, in the first half of the sixteenth century. Bas van Bavel calculated that in

the southern part of the county of Holland urbanites owned 41% of rural land in the mid-sixteenth

century.2 This does not mean that the transformation of the countryside was finished by then: Peter

Hoppenbrouwers indicated that smallholding continued to be important, and that large farms only

emerged at a later stage.3 Considering this decline of smallholding, it comes as no surprise to see that

by the sixteenth century an increasing number of households in the countryside had come to depend

on wage labour. Jan Luiten van Zanden demonstrated that many rural inhabitants of the province of

Holland combined rural activities with more market-oriented proto-industrial activities.4 According

to his estimates, already in 1510/1514 only 41% of rural labour input went to agriculture, the rest

went to other activities such as fisheries, peat digging and work on dykes, maritime shipping and

textiles.5 It is important to point out that these are labour input figures: more than 41 per cent of the

rural population was at some point in the year active in agriculture, but they combined this with the

1 De Vries, The Dutch rural economy, 24-41; J. de Vries and A. van der Woude, The first modern economy.

Success, failure and perseverance of the Dutch economy, 1515-1815 (Cambridge 1998) 159-164. 2 B.J.P. van Bavel, ‘Rural development and landownership in Holland, c. 1400-1600’ in: O. Gelderblom (ed.) The

political economy of the Dutch Republic (London 2009) 167-196. Cf. slightly different estimates: P.C.M. Hoppenbrouwers, ‘Town and country in Holland, 1300-1550’ in: S.R. Epstein (ed.), Town and country in Europe, 1300-1800 (Cambridge 2001) 54-79, pp. 68. 3 P.C.M. Hoppenbrouwers, ‘Mapping an unexplored field. The Brenner debate and the case of Holland’, in:

P.C.M. Hoppenbrouwers and J.L. van Zanden (eds.), Peasants into farmers? The transformation of rural economy and society in the Low Countries (middle ages-19th century) in the light of the Brenner debate (Turnhout 2001) 41-66, pp. 49. 4 J.L. van Zanden, ‘Op zoek naar de “missing link”. Hypothesen over de opkomst van Holland in de late

middeleeuwen en vroegmoderne tijd’, Tijdschrift voor sociale geschiedenis 14 (1988) 359-386, pp. 374-375. 5 J.L. van Zanden, ‘Taking the measure of the early modern economy: Historical national accounts for Holland in

1510-1514’ in European Review of Economic History 6 (2002) 131-163, pp. 135-136 and 138 table 3.

aforementioned non-agricultural activities – including proto-industries. In another study into proto-

industrialization in the countryside of Holland, Bas van Bavel arrived at an estimate of 60% of the

labour input going to non-agricultural activities.6 His research concerned the South of Holland, which

was more urbanized than the North, and may therefore have been more heavily proto-industrialized.

The transition from a medieval society of smallholders, to an early-modern society of

landless labourers working the large farms of landowners, and of proto-industrial producers working

for urban entrepreneurs, was a crucial development in the social and economic history of Europe. It

has first of all been linked to debates about urbanization: the disappearance of smallholders opened

the door for productivity increases in agriculture which were necessary to feed a growing urban

population. It also created a large group of landless labourers that could either work as farmhands on

farms, or move to burgeoning towns. Second, the decline of smallholding and emergence of landless

labourers has been linked to the rise of proto-industrial production in the countryside, which was a

crucial step in the development of export products and also of more capitalist modes of production.

Explanations for the disappearance of smallholders hinge on two completely different

concepts. The first sees a combination of population recovery after the plague of the mid-

fourteenthy century, and partible inheritance, as the cause of a splintering of peasant holdings that

ultimately made self-subsistence impossible for peasant households.7 This development is believed

to have been relatively quick in Holland due to two factors: first, compared to other regions, Holland

was not hit particularly hard by plague, and its population recovered quickly to pre-plague levels.8

Second, due to the sinking of the soil, and land getting too wet for the growing of grain, self-

6 B.J.P. van Bavel, ‘Early proto-industrialization in the Low Countries?’ in Revue Belge de philologie et d’histoire

81 (2003) 1109-1165. 7 P. Malanima, Pre-Modern European Economy: One Thousand Years (10th-19th Centuries) (Leiden/Boston

2009) 111. 8 J. Zuijderduijn, ‘Living la vida apostolica. Life expectancy and mortality of nuns in late-medieval Holland’ CGEH

working paper series 44 (2013); B.J.P. van Bavel & J.L. van Zanden, ‘The jump-start of the Holland economy during the late-medieval crisis, c. 1350 – c. 1500’, Economic History Review 57 (2004) 503-532.

subsistence became increasingly difficult to achieve for peasants.9 In this view, a combination of

demographic and ecological developments reduced possibilities for subsistence agriculture.

The second explanation hinges more on social structures. It suggests that shrewd investors

profited from the distress of ordinary urban and rural inhabitants, forcing them to accept loans in the

form of mortgages, and eventually having them evicted from their land and houses. In this view, the

smallholders were the victims of the emergence and integration of regional markets for land and

capital. This view has been criticized by Sheilagh Ogilvie, Markus Küpker and Janine Maegraith, who

showed that ordinary households in Württemberg, Germany, could make clever use of the market,

and not necessarily fell victim to it: ‘borrowing was not an indicator of crisis or distress’, but rather

‘undertaken as a positive strategy to serve productive purposes’.10 In an earlier article, Jean-Laurent

Rosenthal also objected to the wide-spread idea that rural credit markets only served as a means to

expropriate peasants.11 In an earlier paper I also demonstrated that poor urban households in

sixteenth-century Holland did not necessarily restrict themselves to incurring debts and alienating

their property, but were also active investors in markets.12

To what degree mortgage debts could lead to expropriation of peasants depended to a large

degree on the institutional framework of mortgage markets. In a recent publication I, together with

Christiaan van Bochove and Heidi Deneweth, have argued that mortgage law in the Low Countries

differed from that in England. In the Low Countries mortgagors no longer able to pay mortgage

interest were protected against expropriation: foreclosure was only possible after a juridical

procedure that involved the application of several debt-recovery schemes, and foreclosure was

subject of a court ruling. In England mortgage law allowed the mortgagee to seize the mortgaged real

9 B. van Bavel, J. Dijkman, E. Kuijpers and J. Zuijderduijn, 'The Organisation of Markets as a Key Factor in the

Rise of Holland, Fourteenth-Sixteenth Centuries. A Test Case for an Institutional Approach', Continuity & Change 27 (2012) 347-378. 10

S. Ogilvie, M. Küpker and J. Maegraith, ‘Household debt in seventeenth-century Württemberg: evidence from personal inventories’, The journal of economic history 72 (2012) 134-168. 11 J.-L. Rosenthal, ‘Rural credit markets and aggregate shocks: the experience of Nuits St. Georges, 1756-1776’,

The economic history review 54 (1994) 288-306. 12

J. Zuijderduijn and T. de Moor, ‘Preferences of the poor. Market participation and asset management in sixteenth-century Holland’, European review of economic history 17 (2013) 233-249.

estate as soon as the mortgagor reneged.13 The situation in England was very tough for the

mortgagor, and it has been argued this scared potential borrowers away from using their real estate

as collateral, and thus prevented the emergence of a mortgage market.14 In contrast, the situation in

the Low Countries can be called tough for the mortgagee, who faced a more lengthy debt-recovery

procedure in case the mortgagor reneged. Our knowledge of this debt-recovery procedure is mainly

theoretical: we are as of yet largely unaware of how mortgagees in the Low Countries could force

their mortgagors to pay in practice. How lengthy were these procedures, which transaction costs did

this involve, to what degree did debt-recovery depend on judges’ discretion? Such questions are

important for understanding the emergence of mortgage markets: as Avner Greif has pointed out,

individuals in economic exchange face the ‘fundamental problem of exchange’: how to make sure

that the counterparty will live up to his or her obligations.15 This problem was particularly acute in

mortgage markets, where individuals lent large sums of money, and usually could not afford to

abstain from mortgage interest payments. For investors to enter into a mortgage contract, their

prospects of debt-recovery clearly should meet a certain standard; for debtors to enter into a

mortgage contract, their risk of losing their real estate should be minimized. In this paper we look at

debt recovery in a village in Holland to learn how law courts balanced the interests of creditors and

debtors.

Mortgages and the rural economy

In the sixteenth century villagers faced an increasing number of townsmen gaining ownership of rural

land. This development was not entirely new: already in the fourteenth century the inhabitants of

13

C. van Bochove, H. Deneweth and J. Zuijderduijn, ‘Real estate and mortgage finance in England and the Low Countries, 1300-1800’, Continuity & change 30 (2015) 9-38. 14

R.C. Allen, Enclosure and the Yeoman. The agricultural development of the South Midlands 1450-1850 (Oxford 1992) 86, 102-104. 15

A. Greif, ‘The fundamental problem of exchange: a research agenda in historical institutional analysis’, European review of economic history 4 (2000) 251-284, pp. 251.

the town of Leiden owned 32.3% of of the land in the villages in the surroundings.16 Over time their

numbers increased though, and historians agree that the sixteenth century saw an accelleration of

this process.17 Since Holland was characterized by a large number of small towns, distances between

town and country were usually limited; this probably made investing in the rural economy something

that could easily be achieved. The five villages listed in table 1 were all within a day’s travel of the

nearest town; Mijnsheerenland was most distantly located, at 16 km and also because this village

was on an island.

These townsmen not only made their presence felt as landowners letting their property to

villagers, but also as mortgagees accepting rural land as collateral for loans. Their percentage is also

given in table 1: between 50,8% (Mijnsheerenland) and 81,3% (Heemskerk) of the land put up as

collateral was used as a security for creditors living in one of Holland’s many towns. In many cases

the mortgagors offering this collateral were villagers, but they could also include townsmen using

their rural land as collateral for credit transactions. In Leiderdorp 22 out of 37 mortgages (59,5%)

were used by an urban debtor to secure an urban creditor – these came almost exclusively from the

nearby-located town of Leiden. The reason for this might high involvement of Leiden citizens may be

linked to legislation against the mortgaging of urban land, which was in effect between 1430 and

1568.18 Other towns had taken similar measures, alledgedly in an attempt to prevent abuses such as

putting too many mortgages on a piece of real estate.19 It seems that one of the results was for

townsmen to invest in rural land – which they could still use as a collateral, and which therefore may

have become more attractive than urban land, or if they already owned such land, to use this to

secure ‘urban transactions’.

16

F.J.W. van Kan, Sleutels tot de macht. De ontwikkeling van het Leids patriciaat tot 1420 (Hilversum 1988) 61-64, 282-288. 17

Van Bavel, ‘Rural development’; Hoppenbrouwers, ‘Town and country in Holland’. 18

Erfgoed Leiden en omstreken, Archief der secretarie, Stedeboek, f. 296; Hamaker, De middeneeuwsche keurboeken van de stad Leiden, 206, 270, 376, 383-384. Cf. Brand, who mentions 1459 as the year of introduction (H. Brand, Over macht en overwicht. Stedelijke elites in Leiden (1420-1510) (Louvain/Apeldoorn 1996), 219). 19

Brand, Over macht en overwicht, 219.

Urban mortgagors frequented village law courts where they had mortgage contracts

recorded. These were usually wealthy townsmen and -women, who often amassed an increasing

quantity of land over their life-time, or wealthy urban institutions such as monasteries and hospitals,

whose land hunger was almost proverbial in the later middle ages. Their accumulation of land

contributed heavily to a fundamental transition in the countryside of Holland, from a region

characterized by smallholding, to a region characterized by landless labourers who worked large-

scale commercial farms, were active in proto-industry, or moved to upcoming towns such as

Amsterdam.

Mijnsheerenland

To investigate to what degree mortgages can be said to have exposed villagers to expropriation at

the hand of urban mortgagees, we investigate foreclosures in the village of Mijnsheerenland, or

Mijnsheerenland van Moerkerken, as it was also called. Mijnsheerenland was located in the south of

Holland, in the region of Hoekse Waard. In the sixteenth century it was a relatively new settlement: it

was reclaimed by the Flemish knight Lodewijk Praet van Moerkercken, after the ‘St. Elisabeth’ flood

of 1421 had inundated the region and destroyed the then existing villages.20 The village was situated

on one of the many island in the Muese estuary in the South of Holland, right in the centre of the

island (see map). A large government inquiry for the purpose of the reorganization of tax

assessments, which took place in 1514, gives some of the best information about Mijnsheerenland

in this period. At the time of the inquiry the sheriff and aldermen (who are referred to as heemraden

in the sources) of Mijnsheerenland claimed that the village contained 63 houses and, according to

the sexton, the parish had around 250 inhabitants who were more than 13 or 14 years old and who

would therefore receive the holy communion during mass; the entire population, including young

20

The ‘St. Elisabeth’ flood occurred around November 19 1421, the name day of St. Elisabeth, and caused large parts of the south of Holland to become inundated. A survey of Mijnsheerenland’s earliest history is provided by: J.D. Tresling, Rondom de Binnenmaas (Rotterdam 1937), 149-155.

children, would probably have been numbered about 375 individuals .21 Mijnsheerenland was

estimated to extend over 1000 morgen, or approximately 2104 acres, of which only 15.5 morgen, or

38 acres, was owned by residents of the village; , the rest was owned by people who lived in nearby

towns, such as Dordrecht, and further away, in towns such as Utrecht. It is doubtful that these

figures are very accurate; the villagers may have understated their landownership in order to given a

relatively low tax assessment.22 In addition, the 1514 inquiry tells us that most of the inhabitants of

Mijnsheerenland earned their living in agriculture or fishing, by catching birds and digging dikes.23 To

gain an impression of how Mijnsheerenland compared to other villages on the several islands in the

south of Holland, we gathered data on inhabitants and taxation from other villages included in the

1514 inquiry. The data in table 2 show that Mijnsheerenland was a rather large village, on the islands

considered only Ridderkerk had more inhabitants. The figures also make it clear that the village was

not excessively wealthy, judging by the taxes per capita: 0.16 pounds (hereafter lbs.); the average

for other villages was 0.17 lbs.24

The case of Joost Jorisz.

March 22 1562 Gerrit van Scharlaken Pietersz., a resident of Dordrecht, requested for the execution

of a mortgage used to secure an annuity. The annuity had been issued by Joost Jorisz., a resident of

Mijnsheerenland, to Gijsbert van Scharlaken Pietersz. on February 4 1555.25 The annuity was secured

on a small piece of land of 400 roe – c. 1,4 acre, a surface comparable to less than a football pitch.26

The plaintiff Gerrit indicated that the annuity had come to him from his brother Gijsbert. Since this

21

See: A.M. van der Woude, Het Noorderkwartier. Een regionaal historisch onderzoek in de demografische en economische geschiedenis van westelijk Nederland van de late middeleeuwen tot het begin van de negentiende eeuw (Wageningen 1972), 77-85. For this particular region see: Tresling, Rondom de Binnenmaas, 115-121. 22

Hoppenbrouwers, 'Town and Country in Holland', 67-9. 23

Fruin, Informacie, 582-3. 24

These pounds are a unit of account used by the government of Holland to distribute taxes among towns and villages. 25

ORA Mijnsheerenland, inv.nr. 21 f. 94-95 (March 22 1562). 26

ORA Mijnsheerenland, inv.nr. 2, f. 24v. 400 roe=4 hont= 2/3 morgen= 0,57 Ha=

annuity ‘was disputed’ when they transferred it, Gijsbert had put up additional securities: some real

estate he owned in Mijnsheerenland.27 To return to Gerrit: the reason he requested execution was

because Joost had missed his annuity payment for the year 1561.

This was not the first time Gerrit had complained with the law court of Mijnsheerenland

about this annuity (table 3). On December 5 1560, Gerrit had taken measures to recover the same

debt, by means of schatting.28 He did the same on March 20 1561, now for a debt of 28,65

Karolusgulden (Kg) in annuities – a sum equivalent to c. 60-80 day wages of a skilled labourer.29 As a

mortgagee Gerrit might have been confident in recovering his debt: annuity contracts explicitly

stated that the mortgaged property was there to secure the mortgagee against default. As a

mortgagee, Gerrit was also allowed preferential treatment over most other creditors claiming money

from a debtor. Mortgagees were also allowed summary justice, which should have made for a swift

execution. Finally, contracts usually explicitly stated that the mortgagor was not allowed to delay the

process leading up to foreclosure, for instance by appealing sentences of the court of first instance.

Yet in practise execution did not go as swiftly as many mortgagees might have hoped.

Expropriating a mortgagor was something law courts, such as that of Mijnsheerenland, were very

careful with. In the case of Gerrit, the law court requested to see the originals: three contracts

recorded on parchment, two of them with a green wax seal. These were apparently presented on

November 27 1561, and were to be used during the next court day.30 There is no record of what

happened during this next court day, which may suggest Gerrit and Joris arrived at an out-of-court

settlement, or another type of agreement was ruled by the judges.

Joris continued to struggle though: the following years he frequently faced attachment for

debt31 on the initiative of his creditors. Eventually, on January 24 1565 the apparently inevitable

27

‘….waarom kwestie is ontstaan…’ (ORA Mijnsheerenland, inv.nr. 21 f. 19 (November 21 1560). 28

ORA Mijnsheerenland, inv.nr. 21 f. 22 (December 5 1560) 29

ORA Mijnsheerenland, inv.nr. 21 f. 28 (March 20 1561). 30

ORA Mijnsheerenland, inv.nr. 21 f. 48. The contracts were dated 10.2.1554 stilo curie Hollandie, 10.10.1558 (getransfixeert) and 14.11.1559. 31

In our sources this is called both panding and beslag – both words probably meant the same thing: attachment for debt.

happened: at a public auction the house of Joost Jorisz. was sold to the highest bidder. Surprisingly,

the highest bidder was Gijsbert van Scharlaken Pietersz., who we already encountered as the

creditors who transferred the annuity contract of 28,65 Kg to his brother Gerrit. Gijsbrecht agreed to

pay 130 Kg. – money that would be used to pay Joost’s creditors, including probably Gerrit. Poor

Joost agreed to vacate the house before the end of May.32

When we look at Joost Jorisz., it appears he was heavily indebted. Apart from the annuity he

sold to Gijsbrecht Pietersz. in 1554 we also encounter him in 1550 selling an annuity worth 4 Kg to

Neeltge Jansdr. Van Slingeland in Dordrecht,33 and in 1555 selling a redeemable annuity worth 12 Kg

to Willem Jansz., a brewer from Dordrecht.34 Combined these annuities amounted to 44,65 Kg – c.

74-112 day wages of a skilled labourer.35 He probably had thought on paying this through his

revenues from agriculture: in 1557 Joost was listed as landowner, landlord, and tenant. Joost owned

1,5 morgen which he leased out to a group of tenants, and owned 1,7 morgen which he apparently

used himself.36 Furthermore, he was listed as a homeowner, presumably of the house he would

eventually lose in 1565. In 1557 there were 57 houses in Mijnsheerenland, the average rental value

was 2,4 guilders, which suggests that Cornelis was among the more prominent homeowners. When

we look at his landholdings – as a landlord and the land he used himself – Joost had two plots of land

in 1557, the total size was 3,17 morgen.37 This amounted to less than 0,12% of all land in

Mijnsheerenland.38 In short: Joost was a typical smallholder with a house and a tiny bit of landed

property, and furthermore he depended to a large degree on lease markets to let and lease land

(table 4).

32

ORA Mijnsheerenland, inv.nr. 21, f. 163v. 33

ORA Mijnsheerenland, inv.nr. 1, f. 116. 34

ORA Mijnsheerenland, inv.nr. 2, f. 26. This latter transaction may be linked up with Joost buying land from Willem on September 14 1553 (ORA Mijnsheerenland, inv.nr. 4, f. 24v; cf. ORA Mijnsheerenland, inv.nr. 1 f. 154v. dating this transaction 9 September 1553). 35

J. de Vries and A. van der Woude, The first modern economy. Success, failure, and perseverance of the Dutch Economy, 1500-1815 (Cambridge 1998) 610-611. 36

Delflandse morgen= 0,85 Ha; one hont = 1/6 morgen. 37

Delflandse morgen= 0,85 Ha; one hont = 1/6 morgen. 38

In 1557 the acreage was estimated at 2671 morgen (Helms van Eis, ‘Kohier 10e penning van Mijnsheerenland 1557’).

When we briefly turn to the plaintiff: Gerrit Pietersz. Scaerlaecken was a wealthy inhabitant

of Dordrecht. He was married to Grietken Jansdr., and the couple probably lived in the house

‘Zwartsenborch’ in the city center of Dordrecht.39 Gerrit hailed from a wealthy and influential family,

including his brother Gijsbert Pietersz. Schaerlaecken, who was portrayed as a proud citizen (image

2). The Schaerlaecken family also owned the prestigious house called ‘De gulden os’. Both Gijsbert

and Gerrit were quite active in Mijnsheerenland, as landlords and mortgagees, and they would quite

nicely fit the description of wealthy townsmen increasingly investing in the rural economy, and

accumulating an increasing proportion of land in the countryside. To what degree can it be said that

mortgages accelerated this process?

To answer this question, we should first of all point out that although Joost already missed an

annuity payment in 1560, there are no signs of him being expropriated to pay off his creditors before

1565, when his house was sold during a public auction. This was so even though he had put up a

mortgage to secure his creditors. In theory this should have allowed creditors with summary

jurisdiction; in practise things worked differently though. This is not only visible in the case of Joris,

who was not expropriated the second he missed an annuity payment, but also in many law codes

that reveal that debtors were not easily removed from their property. The result was that execution

was subject to the sentence of judges: mortgage law in Holland gave the creditor a claim to a

collateral. It was up to local judges to effectuate this claim, and they did so in a formal procedure

that allowed the debtor to oppose expropriation. Unsurprisingly, such opposition was widespread:

many towns came with bylaws that were supposed to discourage debtors from opposing the claims

of their creditors, and thus stalling the legal procedure.40 Furthermore, almost all late-medieval

annuity contracts contain clauses in which the debtor promises to refrain from opposing summary

jurisdiction – these clauses are called willige condemnatie and they were supposed to reduce

39

http://www.uwstamboomonline.nl/passie/sites/index.php?mid=220496&kid=2147&pagina=tekstpagina. 40

Zuijderduijn, Medieval capital markets, 219-220.

debtors’ possibilities to frustrate the course of justice.41 Thus, in an annuity contract sold in 1532 by

the church fabric of Mijnsheerenland in 1532, the debtors promised not to use any ‘legal tricks’ to

escape prosecution in the event they defaulted: alle dinc sonder arch ofte list.42

Although it could be argued that courts protected creditors, at the same time courts also

seemed to favour debtors. Law codes usually stipulated that debtors were to receive protection

against losing their livelihood: the land they worked, the premises they used for their business, their

tools. Perhaps as a result of this, law courts were often quite lenient towards debtors, listening to

debtor’s explanations of why they had failed to meet an annuity payment (one can imagine that

there were several good reasons for this, such as bad harvests, floods and fires).43 It seems that

rather than expropriating debtors, judges usually came up with instalment plans: in several towns in

Holland such plans were explicitly mentioned in law codes, allowing the debtor to take out another

interest-bearing annuity to pay the arrears.44 The case of Joris is therefore quite typical for the

situation in the Low Countries: as a debtor who had failed to make payments he was no doubt

pressured by judges to come to terms with his creditors, but judges refrained from so harsh an

instrument as summary jurisdiction. They were rather lenient when dealing with debtors who may

just have had a stroke of bad luck.

It is important to point out the differences with other parts of Europe: both in England and

the South of Europe, mortgages for a long time worked quite differently. In these areas upon

borrowing on collateral of real estate, the debtor transferred his property to the creditor, and it was

the debtor who was provided with the possibility to reclaim the land by paying the principle sum. In

Holland and the Northwest of Europe, the debtor did not transfer his property to the creditor, but

merely provided the creditor with a claim. This situation put the creditor in the position of having to

turn to law courts to effectuate their claim, and this opened the door for leniency. In England and the

41

Zuijderduijn, Medieval capital markets, 219-220. 42

ORA Mijnsheerenland, inv.nr. 1, f. 2. 43

Zuijderduijn, Medieval capital markets, 219. 44

Zuijderduijn, Medieval capital markets, 219.

South of Europe, creditors were already made owners of the collateral, and judges had therefore far

less options to protect debtors. Under such circumstances taking out a mortgage was something to

be done as a means of last resort; as a result, in these areas mortgage markets did not really take

off.45

The fact that foreclosure was subject to judges’ sentencing allowed for leniency. A second

element contributing to this was the widespread use of the ‘general mortgage’ in annuity contracts.

With the general mortgage the debtor pledged all his present and future property.46 This type of

security differed from the ‘special mortgage’ which was put on a piece of real estate, and allowed the

creditor only to attach this piece of real estate. In contrast, with a general mortgage the creditor

could attach any type of property of the debtor. In sixteenth-century Holland annuity contracts

usually contained both a special and general mortgage: a debtor mortgaged a clearly specified piece

of real estate, and additionally also pledged all his present and future property. The latter provided

judges with yet more ways for discretion because upon receiving a complaint from a creditor, the

judges could decide whether they would allow the former to attach the special mortgage (real

estate) or the general mortgage (cattle, harvest etc.). Perhaps most creditors pressed for execution

of real estate, but most judges favoured execution of other things: Gerrit Pietersz. constantly pressed

for execution of the special mortgage he held, but apparently this did not happen.

Finally, and before we continue, it may be instructive to discuss a general mortgage clause. In

1532 year Evert Adriaensz., a resident of Mijnsheerenland, sold an annuity that was mortgaged on a

piece of land of 14 morgen, as well as a general mortgage, so that:

45

Van Bochove, Deneweth and Zuijderduijn,’ Real estate’. 46

A. Herman, Het karakter van ons hypotheekrecht historisch beschouwd (Amsterdam 1914) 15-18, 27-28; Zuijderduijn, Medieval capital markets, 217.

In case of default Evert Ariaensz. was liable, both for the principal and the annuity, and

arrears could be claimed [by the creditor] on his property, both present and future.47

In addition to a special mortgage, Evert secured the transaction with a general mortgage. Such

combinations of special and general mortgages appear in almost all late-medieval annuity

contracts.48 The latter provided creditors extra security, but also opened door for leniency among

judges willing to protect debtors against expropriation of real estate for debt.

Foreclosures

When we look at foreclosures in Mijnsheerenland (table 5), and in particular the trajectory leading

up to expropriation, we can first of all see that the law court of Mijnsheerenland tended to begin

with attaching movables. Pieter Aartsz., a debtor who lost his house on June 19 1561, faced schatting

of his ‘best bed’, pewter- and copperware prior to this.49 Shortly after, his creditors began to press

for execution of his house,50 presumably because he was landvluchtig – he had abandoned his

property and left the village, probably to escape his debtors. In his absence, the judges apparently

decided to publicly auction Pieter’s house.51 It should be mentioned that fleeing the jurisdiction led

to foreclosure in at least several other cases: the house of the debtor Cornelis Willemsz. was put up

for auction because he had suddenly left Mijnsheerenland,52 and these same went for Lambrecht

47

ORA Mijnsheerenland, inv.nr. 1, f. 2.v. (voert of hier aen yet gebrake soe selt evert ariaensz voirs hem selven noch als waerborch alsoe wel voer dat hoetgelt als voer die rente te mogen verhalen op sijn gerechte guede gewonnen ende ongewonnen…). Cf. another example idem, f. 41. 48

ORA Mijnsheerenland, inv.nr. 1, f. 4v, 6, 6v etc. Other examples from the region Hoekse Waard are: L. Helms van Eis, ‘Heinenoord. Prothocol van eijgen brieven en renten beginnende in den jare dertich (1535-1579)’, 20 November 1545, 13 maart 1547, 3 mei 1554, 26 mei 1555 etc. Cf. other examples from the villages mentioned in table 1: Leiderdorp: Erfgoed Leiden en omstreken, Archief Leiderdorp, oud-rechterlijk archief inv. nr. 2 f. 12v, 13v, 41v, 42 etc.; Heiloo en Oosdom: Gemeentearchief Alkmaar oudrechterlijk en weeskamerarchief Heiloo inv. nr. 70 protocollen van Heyloo ende Oesdom Protocolboek A, f. 10v, 13v, 18v, 23v etc. 49

ORA Mijnsheerenland, inv.nr. 21, 21 May 1561. 50

ORA Mijnsheerenland, inv.nr. 21, 26 mei 1561, 28 mei 1561. 51

ORA Mijnsheerenland, inv.nr. 21, 19 juni 1561. 52

ORA Mijnsheerenland, inv.nr. 21, 27 april 1564.

Cornelisz.53 Furthermore, we learn of Ryck Albrechtsz. that he was outside the region when his house

shortly before his house was put up for auction. According to the plaintiff, Ryck had failed to pay for

a house ‘and because Ryck is now living outside Hoekse Waard, he requests for this house to be

publicly auctioned’.54 In December 1563 Ryck acknowledged he had been informed that this house

had been sold.55 Finally Wouter Jansz. also lived outside Hoekse Waard when he faced foreclosure

because he had failed to pay tithes.56 In two cases, our sources also indicate that in case of flight, the

right to summary execution fell to the sheriff.57

Not every debtor fled though. Cornelis Heijenz., a resident of Mijnsheerenland, faced

numerous plaints prior to his house being auctioned off in 1560, but stayed in the village. In

September 1560 the plaintiffs were Wilhelmina, trying to recover 182 Kg, and furthermore the

aforementioned Pieter Aartsz. trying to recover a quantity of rye.58 In October Tielman Hugensz. filed

a plaint because of a schepenschuldbrief issued in Dordrecht, and the same day (October 10 1560)

the bode of Mijnsheerenland came to Cornelis Heijenz. to tell him his bed had been seized on behalf

of yet another plaintiff: Kors Reijersz. That same day Cornelis’ summer and winter rye were also

made subject to schatting.59 Apparently this was all in vain: on October 23 Cornelis’ property was

assessed (schatting), and three days later his house was transferred to one of his creditors,

Wilhelmina, the widow of Willem Jansz. Nuijssenburg, a resident of Dordrecht. Contrary to the

debtors discussed above, Cornelis continued did not flee the scene, but continued to live in the

village: in November 1560 he was again subject of panding for 5,55 Kg worth of wages, and for 2,75

Kg because of an obligation. The same day the aforementioned Tielman Hugensz. was allowed

panding of Cornelis’ summer and winter rye – on December 15 Tielman received ‘all winter rye of

53

ORA Mijnsheerenland, inv.nr. 21, 28 September 1564. 54

ORA Mijnsheerenland, inv.nr. 21, 22 August 1563; 14 October 1563. 55

ORA Mijnsheerenland, inv.nr. 21, 9 December 1563. 56

ORA Mijnsheerenland, inv.nr. 21, 9 December 1563. 57

This was so because of ‘ambachtsherenrecht’ (ORA Mijnsheerenland, inv.nr. 21, 27 april 1564). 58

Helms-Van Eis, ‘Het register van Moerkercken resp. Mijnsheerenland’, 12. 59

Helms-Van Eis, ‘Het register van Moerkercken resp. Mijnsheerenland’, 12.

Cornelis Heijenz., whether pledgled or not, found inside the house and haystack’.60 A year later

Cornelis was still in dire straits with his rye being attached, and also his horses.61 Shortly after he

died.62

It is difficult to get an impression of the time that elapsed between the beginning of a dispute

and eventual foreclosure. A first concerns our sources (dingboeken) that only begin in 1559, so we

miss data on any actions creditors may have undertaken prior to this year. A second problem

concerns the linking of ultimate foreclosure to a single creditor – and hence to pinpoint when the

dispute that led to foreclosure began. Table 5 gives dates of foreclosure, and date of the first legal

action undertaken against the debtor. The first creditor appearing our sources (i.e. after 1559) filing

against the debtor may not have been behind the foreclosure that occurred at a later point in time.

What these data capture is merely a suggestion of how long debtors could hold out fending off losing

their real estate. Cornelis Heijenz. held out for four months, but the others clearly held out for a

much longer time. They did so while frequently being summoned in court, having the value of their

property estimated (schatting) and even seized and put up for auction. This gave them time to

recover from hardship, to restructure their debts, or to arrive at a settlement with their creditors –

these could all prove crucial in preventing foreclosure.

The relatively low number of foreclosures recorded in Mijnsheerenland is surprising, in

particular given the large number of mortgages taken out in the village: between 1532-1543 on

average 4 annuities were contracted per annum, in a village of c. 375 inhabitants, and with no more

than c. 100 householders.63 Keeping in mind that these were long-term debts that usually ran for

many decades, it follows that a large proportion of the real estate in Mijnsheerenland was

mortgaged to secure annuities, and a lot of the resident owners were at risk of being expropriated in

case of default. It was not at all unusual for a large proportion of real estate being mortgaged:

60

Helms-Van Eis, ‘Het register van Moerkercken resp. Mijnsheerenland’, 15, 17-18. 61

Helms-Van Eis, ‘Het register van Moerkercken resp. Mijnsheerenland’, 26, 29. 62

ORA Mijnsheerenland, inv.nr. 21, f. 25-3-1562. 63

Van Bochove, Deneweth and Zuijderduijn,’Real estate’. In the 1557 real estate taxation 63 homeowners were listed (Van Eijs, ‘Kohier 10e penning van Mijnsheerenland 1557’).

reports from villages in the surrounding of Mijnsheerenland, in 1514, hint at many village inhabitants

having used their real estate to secure loans.64 To put it another way: in Mijnsheerenland and

elsewhere in sixteenth-century Holland the population at risk of foreclosure was quite large. Yet,

when we look at the law suits brought before the judges of Mijnsheerenland, there is little to no

evidence of creditors pressing for foreclosure.

There is a lot of evidence of plaintiffs pressing for the execution of other property though.

Table 6 provides a sample of one year of court activity. In 1560 the judges held court sessions on 63

days throughout the year, resulting in the recording of 139 legal acts. The majority of legal acts

issued during these sessions concerned either preparing for seizure (schatting) or seizure itself

(beslag and panding): 86 out of 139 acts, or 61,9%. Although in the majority of cases the assets

attached are not given in our source, it seems that cattle and corn were particularly popular. Given

that our sources are silent about what was attached in so many instances, it is difficult to arrive at a

firm conclusion: seizure of an unknown good may have concerned real estate. However, we believe

that the silence about attachment of real estate fits into the general picture, either of only few

creditors pursuing their debtors’ real estate, or many creditors not being allowed to do so by lenient

judges.

Conclusion

Our case study reveals that even though Mijnsheerenland had many debtors who had mortgaged

their real estate, only few of them ever lost their property because they failed to pay their creditors.

Foreclosure certainly was a right held by all mortgagees, and explicated in all mortgage contracts;

however, before they could execute this right, they had to convince the judges of the local law court

that foreclosure was necessary. It appears that these judges carefully weighed the options available

64

E.g. Lekkerkerk, Krimpen aan de Lek, Krimpen aan de Ijssel, Stolwijk, Berkhou, Kijfhoek (Fruin, Informacie, 571, 573, 574, 578, 579, 590). Participation of villagers in financial markets, using their real estate to secure loans, is also discussed in Van Zanden, Zuijderduijn and De Moor, ‘Small is beautiful’.

to them, and tried to arrive at solutions that would not ruin debtors. Their discretion was possible

because in the Low Countries the mortgage was a claim that was to be effectuated, and also because

mortgage contracts usually combined a special and general mortgage. The latter exposed all

possessions of the debtor to the debt-recovery process – and this provided judges with possibility to

redirect claims from real estate to cattle, corn and furniture. It seems expropriation of real estate

rather was a measure of last resort than the inevitable result of a default. The peasant expropriation

Holland experienced in the sixteenth century, and that indeed led to a sharp increase in landholding

among townsmen and -women such as Gerrit Pietersz. Scaerlaecken, and Wilhelmina, the widow of

Willem Jansz. Nuijssenburg.

Many economic historians have focused on the position of the debtor, following Avner

Greif’s concept of the fundamental problem of exchange that holds that creditors usually demand

some form of securities, or otherwise refuse to extend credit.65 Economists likewise focus on the

‘moral hazard’ creditors face with debtors trying to get away with defaults. Both concepts are indeed

important, but only reveal part of the story. Not only should creditors be convinced to enter into a

transaction with ample securities, but debtors should be reassured as well. In a pre-industrial

economy, with a lot of risks and very limited means of insurance, anyone could miss a payment. In

the event this inevitably results in the loss of the collateral, few people would be willing to engage in

a mortgage contract, except for when they are exceptionally hard-pressed. Those looking to borrow

money for productive investments or the arrangement of intergenerational transfers of property,

would probably have deemed the risks involved too high. Without mortgagors confident that they

would be able to borrow and hold on to their land, it was nearly impossible for early financial

markets to emerge.

65

A. Greif, ‘The fundamental problem of exchange: a research agenda in historical institutional analysis’, European review of economic history 4 (2000) 251-284, pp. 251.

Table 1. Mortgages in five villages in Holland (sixteenth century)

N % townsmen Nearest town

Heiloo and Oosdom 1560-

1562

20 60,0% Alkmaar (5 km)

Heemskerk 1557-1564 80 81,3% Haarlem (4 km)

Leiderdorp (1569-1574) 37 72,9% Leiden ( 3km)

Oost-IJsselmonde 1552-

1575

45 53,3% Rotterdam (8 km)

Mijnsheerenland 1532-

1567

132 50,8% Dordrecht (16 km)

Sources:

Heiloo en Oosdom: Gemeentearchief Alkmaar, oud-rechterlijk en weeskamerarchief Heiloo, inv. nr. 70:

protocollen van Heyloo ende Oesdom Protocolboek A, f.10-41v.

Heemskerk: Gemeentearchief Haarlem, Ambachts- en gemeentearchief van Heemskerk inv. nr. 243

Oost-IJsselmonde: Rotterdam Municipal Archives, archives of the former Gemeente IJsselmonde inv. nr. 183.

Leiderdorp: Ergoef Leiden en Omstreken, archief Leiderdorp, oud-rechterlijk archief, inv. nr. 2.

Mijnsheerenland: L. Helms-van Eis, "Register En Protocol Van Eijgen- Ende Rentebrieve Van Moerkerken,

Ingaende Anno XVc XXXII Ende Eindigende Metten Jare 1552," Ons Voorgeslacht: Maandblad Van De

Vereniging Ter Bevordering Van Het Stamboomonderzoek Voor Rotterdam En Omstreken 37 (1982) 97-132; L.

Helms-van Eis, "Register En Protocol Van Eijgen- Ende Rentebrieve Van Moerkerken, Ingaende Anno XVc XXXII

Ende Eindigende Metten Jare 1552," Ons Voorgeslacht: Maandblad Van De Vereniging Ter Bevordering Van Het

Stamboomonderzoek Voor Rotterdam En Omstreken 40 (1985), 143-155.

Table 2. Population and taxation in Mijnsheerenland, Holland, 1514

Village The number of inhabitantsa

Taxation (lbs.)b Tax/capita (lbs.)b

Mijnsheerenland 375 60 0.16 Puttershoek 90 7 0.08 Maasdam 75 7.5 0.10 Heinenoord 300 24 0.08 Heer Jansdam 260 32 0.12 Linde 120 15 0.13 Heer Oudelands ambacht 33 17 0.52 Schobbelandsambacht 128 20 0.16 Kijfhoek 42 18 0.43 Hendrik Ido Ambacht and Adriaen Pietersz Ambacht 338 36 0.11 Rijsoorde 53 18 0.34 Ridderkerk 495 124 0.25 IJsselmonde 300 41 0.14 Barendrecht 179 45 0.25 Totalc 2788 464.5 0.17

Notes: a As our sources record only the number of people who received Holy Communion. we have corrected our

figures to include the people that did not do so; i.e. infants and children younger than 13 or 14 years. We

follow the approach used by Van der Woude who calculated that approximately 33 per cent of the population

would have been younger than 13-14 years (Van der Woude. Het Noorderkwartier I. 77-85). b Taxation expressed in pounds (lbs.) a unit of account used by the government of Holland to distribute taxation

among towns and villages. c The fifteen villages listed all lay in the areas of Hoeksche Waard and Zwijndrechtse Waard; the list comprises

all those villages for which we have data on population and taxation.

Sources: Fruin. Informacie. 185-189; R. Fruin (ed.). Enqueste ende informacie upt stuck van der reductie ende

reformatie van den schildtalen (Leiden 1876) 267-269; Naber. Een terugblik.

Table 3.

Joost Jorisz. As defendant before court of Mijnsheerenland

Date Plaintiff Type

20 March 1560 Gerrit Pietersz. Execution mortgage

5 December 1560 Gerrit Pietersz. Execution mortgage

27 November 1561 Gerrit Pietersz. Execution mortgage

22 March 1562 Gerrit Pietersz. Execution mortgage

25 November 1562 Gerrit Pietersz. Schatting

24 January 1565 Gijsbrecht Pietersz. Buys Joris’ house at public

auction

Sources: ORA Mijnsheerenland, inv.nr. 21 f. 22, 28, 94; ORA Mijnsheerenland, inv.nr. 2 f. 163v.

Table 4. Property of Joost Jorisz.

Size Landlord/tenant Rent (Kg/morgen)

Tenant

4 morgen Kartuizers Geertruidenberg 5

Landlord

1,5 morgen Wouter Pietersz. cs 9,25

Landowner

1,67 morgen Joost Jorisz. 6

Home

- Joost Jorisz. 3,5

Table 5. Foreclosures in Mijnsheerenland 1559-1578.

Date of foreclosure Debtor First known legal act Fugitive

8-11-1560 Jacob Jacobsz and his wife Adriaantje

?

26-10-1560 Cornelis Heijenz.

21-6-1560

19-6-1561 Pieter Aartsz

5-10-1560 x

8-11-1563 Jan Phazen

26-12-1561

14-10-1563 Rijck Albertsz

18-2-1562 x

9-12-1563 Wouter Jansz and his wife

15-10-1562 x

22-9-1564 Cornelis Willemsz

11-2-1559 x

24-1-1564 Joost Jorisz

20-3-1560

13-12-1565 Lambrecht Cornelisz

19-4-1561 x

6-6-1576 Crijn Jansz

4-3-1560

ORA Mijnsheerenland, inv.nr. 2, 21, 22.

Table 6. Legal acts law court of Mijnsheerenland 1560

N Real estate Cattle Corn Other Unknown

Attachment 66 - 8 11 6 41 Schatting 20 - 9 4 1 6 Other 49 - - - - -

Image 1. Mijnsheerenland c. 1542

Thanks to Arjan Nobel for helping me out in making this map.

Image 2. Gijsbert Pietersz. Schaerlaecken and his wife Adriana van Slingelandt

Rijksmuseum RP-T-1959-190