Dorreboom, Marten Lodewijk, ,Gelijk hij gecondemneert word mits deezen’.
HeirbautDorreboom20010820 Nr. 10370 ZRG 119 (2002) 48
Dorreboom, Marten Lodewijk, ,Gelijk hij gecondemneert word mits deezen’. Militaire strafrechtspleging bij het krijgsvolk te lande, 1700-1795. Cabeljauwpers, Amsterdam 2000. X, 370 S. (with summaries in English and French)
In an overwhelming majority of cases, a curriculum vitae appended to a published doctoral dissertation tells the reader little about the author, who is usually too young to have accomplished much of note. This time, however, the Ph. D. was not the start of a career, but its final achievement. The author, M. L. Dorreboom, was a pilot for KLM and Lufthansa, and only took on the study of history after his retirement. When he defended his dissertation, he was already more than seventy years old. His age and the subject he has chosen – military justice, which, proverbially, is to justice what military music is to music – may easily lead a cursory reader to lay aside this book for another.
That, however, would be doing both the author and his subject an injustice. Military justice has largely been neglected by legal historians and never more so than in the Netherlands. This seems particularly ironic if one considers that the United Provinces, the Dutch Republic, was one of Europe’s leading nations in war and law during the seventeenth and the beginning of the eighteenth centuries. Therefore, like the author, one should wonder what kind of military justice the eighteenth century Netherlands produced. At first sight, military law for the land army seems to have been a world apart with its own legislation (i. e., the 1590 articulbrief and later amendments), judgment by superiors rather than by peers, specific military crimes or punishments like desertion or running the gauntlet, short and speedy procedures, and a greater flexibility in sentencing and pardoning dictated by political and military considerations. Consequently, the articulbrief was no more than a directive, and leniency had become systematic. Moreover, the fellow soldiers of the convicted had to execute the most common punishment by making him run the gauntlet, but seemed to have been unwilling to use much force. In spite of all this, the evolutions in military and civilian law seem to have run among parallel lines in this period. Unfortunately, Dorreboom has neglected to elaborate on this by making more use of the well-known books by Faber and Simons on (civilian) criminal law and the special criminal law for the navy. In addition, Dorreboom’s book is very weak in the comparative field. References to foreign literature, i. e. in other languages than Dutch, is almost absent, and even some fundamental publications in Dutch are overlooked, if they do not deal directly with the author’s subject. (E. g., on p. 11, Dorreboom fails to mention the articles by Monballyu and Moorman van Kappen about the 1570 criminal ordinances of Philip II.) The author regularly refers secondarily to literature and sources quoted by others, even though, as in the case of the oft-quoted Wielant, the original is easily accessible.
However, one should not judge Dorreboom too harshly, for his is a pioneering study on a subject hitherto neglected, even by eighteenth-century jurists, the military prosecutor Van Hasselt being the one exception. Thus Dorreboom had no alternative but to search the archives himself for material, and it is here that he really excels. He has that rare gift of the historian who, out of the midst of a dusty archive, can exhume the most intriguing cases and, in his writing, make them come alive to the reader. It is hard to find fault with his interpretations, and those less familiar with the military jargon of the time can find succinct, but clear explanations in the footnotes. One caveat may be mentioned here: Dorreboom only consulted military archives, and they may not give the whole picture. Indeed, the archives of civilian courts may contain materials that would shed further light on military justice in the Dutch Republic, but, as to that, we are left in the dark. Moreover, since he is a historian and not a lawyer, Dorreboom’s analysis of law cases is often weak on legal points. However, his shortcomings are, in fact, already present in the eighteenth-century military courts, in which there was only one law professional, the prosecutor (a civilian), whereas the court itself was composed of military men with little or no acquaintance with legal science.
Dorreboom grasps the underlying realities of eighteenth century military justice in the United Provinces quite well: the army lacked manpower, and this determined its attitude towards crime. In theory, desertion may have been the most despicable crime, but in reality, deserters were the main beneficiaries of pardons. This was common to all countries in the period before the rise of popular armies. Specific for the Netherlands, however, was the institutional context. As the name indicates, the Dutch Republic was not a monarchy, but it contained a quasi-monarchical element, the stadholders of the house of Orange-Nassau. The opposition between stadholder and „regents” (the merchant aristocracy) determined political life in the United Provinces. Sometimes the Republic was more of a monarchy, yet sometimes it could even be „stadholderless”. The ups and downs of the stadholder’s power are nowhere better reflected than in the supreme military jurisdiction, because here the Council of State and the stadholder, who was also captain-general of the Republic’s armies, regularly clashed. Originally, the Council of State had been the highest military court in the land, but in the beginning of the seventeenth century, stadholder Maurits had been able to elevate the court martial of his field army to the status of Supreme Court Martial. Thereafter, its jurisdiction would, until its abolition in 1783, be determined by the presence of a stadholder and his power against the republican institutions. The opposition between the latter and the stadholder was also apparent in the application of a 1748 decision of the States-General, the supreme political body of the Republic, to change the punishment for deserters. They should have been condemned to death, but because this penalty was only rarely applied, the States-General instituted a new punishment: lifelong forced labour for the maintenance of fortresses and walls. The military courts obediently sentenced deserters to this new punishment. However, their decisions had to be approved by the stadholders, who nearly always did so, but not before commuting the sentence to a much lighter punishment. This demonstrates that the history of military justice in the Dutch Republic offers valuable insights into the internal workings of this Republic itself, arguably the most interesting legal experiment of Early Modern Europe. Therefore, it would be a shame, if this book would be read only by students of military history, and not by specialists of institutional history, for it sheds new light on the nature of the Dutch Republic and its stadholders.
Gent Dirk Heirbaut