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First draft, please do not quote without author’s permission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