3.3.2 Local Origins: French Municipal Freedom
Another possible origin of the French freedom principle takes us back to the municipal charters we already quickly conveyed when discussing the decline of English villeinage. Before 1200, many of the French cities north of the Loire received town charters that gave special rights to the citizens of the city.
One idea popularly associated with cities was that of “city air makes free”. This maxim held that unfree persons residing in a city for a certain duration of time could not be reclaimed by their lords, and thus in effect were no more in servile condition.83
It needs to be borne in mind that the extinction of the lord’s so-called droit de poursuite after a year and a day was not confined to cities. The extinctive prescription of a year and day was a more general legal principle in sway during the early Middle Ages, before the (often longer) Roman terms of prescription became more popular again in the late Middle Ages.84 Cities are important though, as they were obviously in a better position to oppose a lord trying to reclaim his fugitive serf.
The origins of the “city air makes free” clause, as found in written form in town charters, can be traced back to the efforts of Spanish cities to attract settlers in the tenth and eleventh century. The provision soon found its way up north, and first appeared in Southern France in 1107.85 This kind of privilege was not universally found in all town charters, but it became especially important in the French city of Toulouse.86
Although the freedom principle of Toulouse can be traced back to the beginning of the 13th century at least, the principle was written down for the first time in 1283, as the customs of the city were written down when the County of Toulouse passed into the royal domain.87 Regarding serfdom, Art.
155b of the customs of Toulouse held that, although serfs might well exist in the city, their lords could not stop them from carrying out their business in the city of Toulouse, nor take them out of the city.88 Strictly speaking then, Toulouse was not free, but masters were unable to exercise their seigniorial rights on serfs in the city.The principle would start to extend in the fourteenth century, the provision being used to try and assert a slave (and not a serf, the status with which the provision originally dealt)’s freedom. Starting from this century, the historical records show a continuous, small stream of slaves from Catalonia and Roussillon fleeing from their Spanish households, where slavery was practised, towards Toulouse.89
The records tell about the case of a Greek slave who fled his master in Perpignan and came to Toulouse in 1373, after which the French Crown was unable to apprehend him, owing to the freedom principle of Toulouse.90 Two other cases of 1402 and 1406 are better reported. In the 1402 case, four slaves escaped from Perpignan and took refuge in Toulouse. Their owners asked the capitouls of Toulouse to return the slaves, but they refused.91 The ground of their refusal was that “any sort of slave was free as soon as he had set foot in the outskirts or wider jurisdiction of the city”.92 Likewise, the capitouls refused a request from a master to return his female slave, who had fled Perpignan for Toulouse in 1406.93
However, even the freedom principle of Toulouse, as applied to slaves, could not be taken for granted in the fifteenth century, as some exchanges between the French and Aragonese authorities showed that the principle clearly had not become a general principle of French law yet. The continued stream of slaves escaping from Perpignan soon drew the ire of the King of Aragon, who started complaining to his French counterpart. In 1427, a case involving a runaway slave came before the newly established Parlement of Toulouse, the highest court in that area.
The arguments made by the procureur du roi and the judgment of the Parlement make clear that France was not (yet) a territory of freedom, as the slave was returned to her master. However, it is unclear whether this decision refuted the freedom principle of Toulouse, or whether the slave herself had not been in Toulouse proper.94 In 1437, the King of Aragon pressed the matter even further. Hence, after negotiations between France and Aragon, a commission was established that was responsible for reviewing claims regarding escaped slaves from Aragon who had gone to the city of Toulouse.95 In 1440, Jean Solacii, a representative of the municipal authorities of Toulouse, defended the freedom principle of his city before this commission. Remarkably, he tried to link the freedom principle of Toulouse with the French crown, stating that the fame of the French king resided in the freedom of all the inhabitants of his kingdom.96 The commission remained unmoved by this plea, and suppressed the privilege of Toulouse in a 1442 judgment.In the long term, Toulouse’s custom survived this temporary blow. The city appealed the case to the Parlement of Paris, which declared that the committee’s decision was null and void. Likewise, when the proposed suppression of the privilege of Toulouse became part of a treaty between the French and Aragonese King, the Parlement of Toulouse accepted to register the treaty itself, but rejected the part concerning Toulouse’s freedom principle custom. The custom had prevailed.97
By this point, Toulouse was not the only city whose records bear testimony to a tradition of the freedom principle as applied to slaves. Nearby Pamiers, for example, invoked the same principle on the basis of its 1228 city charter. In one case, a merchant from Barcelona held that the black servant of a citizen of Pamiers was actually his slave. The servant was temporarily kept as a prisoner in the castle of the city. When the case came before the municipal authorities, they refused to give the purported slave back to his master, referring to their freedom principle and various other precedents.98
At the end of the fifteenth century, the freedom principle thus had strong roots in the customary laws of Toulouse and various other cities. The principle was responsible for giving freedom to several Spanish slaves. However, the principle clearly had a local, not a national application, as the king of France was willing to set it aside in order to make deals with the king of Aragon. We will thus have to move on to the sixteenth century to see if the principle gained a wider territorial application at that point.