3.3.3 From Municipality to Country: The Development of a National Freedom Principle
The evolution from a municipal to a national French freedom principle probably occurred in the second part of the sixteenth century. In this era, we find Jean Bodin holding that “inso much that the slaues of strangers so soone as they set their foot within France become franke & free” in his Six livres de la république.
Half a century later, Antoine Loisel’s (1536–1617) Institutions coutumières claimed that “Toutes personnes sont franches en ce Royaume & si tost qu’un esclave a attaint les marches d’iceluy, se faisant baptiser, il est affrachy”.99 This sudden change begs the question how such an important principle suddenly became part of French law. First, I want to give a concise overview of the cases, popular stories and scholarly writing associated with the establishment of a national freedom principle. Second, I aim to show some of the proposed reasons for how and why the freedom principle was elevated to a national principle of French law.3.3.3.1 Selling Slaves in Bordeaux: The 1571 Decision of the Parlement of Bordeaux
In contrast to England, we find a clear (and reliable) enunciation of France’s freedom principle in a sixteenth century case. Starting from the fifteenth century, Norman seafarers, next to a sizeable community of Spanish and Portuguese merchants, had been involved in selling enslaved Guanches, the native population of the Canary Islands. One of the main ports of departure was Bordeaux. The people of Bordeaux were thus well accustomed to the slave trade, but not to what happened in February 1571. A merchant arrived with a cargo of enslaved “nègres et maures” in the city, and decided to sell the slaves on French territory.100 One way or another, the procureur-gĂ©nĂ©ral got to know of this, and appealed to the regional sovereign parliament, the Parlement of Bordeaux.
According to the procureur-gĂ©nĂ©ral, the slaves had to be freed, because “la France ne permettait point aucuns esclaves”. The case was decided before the Parlement in the same month, which held that “la France, mère de la libertĂ© ne permet aucuns esclaves”.101Some things have to be borne in mind. First, although the Parlement apparently made a sweeping judgment, this did not mean it became hard law in all of France. Sovereign parlements only had autonomous regulatory powers when acting through arrêts de règlements, which was not the case here. Even then, their authority was limited to the ressort of the Parlement.102
Brett Rushfordt has conducted detailed research on the case. He believes that the influence of several important sixteenth century humanists in the Parlement of Bordeaux might have influenced the case. People like the humanist Michel de Montaigne (1533–1592) were staunch protectors of French liberty and believed all people were born free, and Rushfordt believes the intellectual influence of such people was important in deciding the case.103
Furthermore, it is unclear whether the king himself considered France to have a freedom principle at this moment. In 1574, the French king had sent lettres patentes to the Parlement of Bordeaux, stating that the Spanish and Portuguese merchant community in Bordeaux was under his special protection. This measure explicitly forbade anyone to act against the “serviteurs, biens et choses quelconques” of those merchants.104 Rushfordt opines that this decision might have been made in reaction to the 1571 ruling of the Parlement of Bordeaux, and that it might have covered the merchant’s right to keep some of their slaves with them as servants whilst on French territory.105
Next to this landmark case, there are various other relevant court rulings, though some of them have a rather tendentious credibility.
First, Jean Bodin, who had studied at the University of Toulouse himself, pointed out several cases.
One 1558 case involved the Lord of Rocheblanche in Gascony. Besides the classical feudal obligations, this lord also claimed a variety of other dues. Most importantly, he claimed the right that, if one of his serfs left the land without his permission, “hee might lead them home againe in an halter”. Apparently, this was rejected by the Parlement of Toulouse “as preiudiciall unto the right of libertie”.106 Second, Bodin also recalled a case that took place when he was a law student himself (between 1550 and 1555). This time, a Genoese person passed through Toulouse with a slave he had bought in Spain. The Italian quickly noticed that it was the intention of the capitouls to free this slave. As a result, he freed the slave himself, but made a contract of service for life with the slave to circumvent the full application of the freedom principle. In this case, it is unclear whether the decision of the capitouls was made on the basis of Toulouse’s freedom principle, or on the basis of a broader principle of French freedom.107 Finally, Bodin also mentioned a third case, although we know little to nothing about it. To give extra credence to the 1558 ruling against the Lord of Rocheblanche, Bodin held that slaves of strangers became free so soon as they set their foot within France “as was by an old decree of the court of Paris [the Parlement of Paris] determined against an ambassador of Spain, who had broght a slave with him into France”.108 We know nothing more of this latest case, and in the case of Jean Boucaux v. Verdelin in 1738, which involved a slave claiming his freedom in France and which we will discuss later, Verdelin’s lawyer rightly stated that we know “ni la date, ni les circonstances” of it.109Finally, in another case on French slavery, the Affaire Furcy of 1843, a slave’s lawyer invoked a 1538 case in favour of the freedom principle. This reference can be traced back to Louis Le Caron’s (1534–1613) 1593 Pandectes ou digestes du droit françois.110 He mentions how he saw a case being adjudged, though he does not say which court exactly delivered this judgment.
According to Le Caron, an Italian had come to France with his Greek slave. After the Greek slave’s master died in France, the slave had become a paid servant, serving another lord. The Italian heirs of the deceased slave owner now tried to claim the slave back. The court refused this and declared that the Greek was free “selon le droit commun de France”.1113.3.3.2 Popular Histories of the Freedom Principle: Spanish Slaves on French Soil
Next to the legal cases, we also have an account of two popular histories of the French freedom principle, which were also cited during the case of Jean Boucaux v. Verdelin. The first one was in the context of the 1552 Siege of Metz. Historically, the Three Bishoprics of Metz, Toul and Verdun were part of the Holy Roman Empire. In the wake of the wars of the Schmalkaldic League, Emperor Charles V tried to reintegrate the protestant areas back into the catholic fold. Maurice of Saxony opposed these plans, started another revolt and managed to get the French king on his side with the 1552 Treaty of Chambord.112 The deal also placed Metz under the protection of the French king, after which the Emperor laid siege to the city. The story of the siege (which the Emperor was eventually forced to lift) was reported by the French diplomat Bertrand de Salignac. Salignac reported how Don Luis d’Avila, the general of the Spanish cavalry, wrote a letter to François de Guise, the French commander. d’Avila asked to send back a slave, who had fled the Spanish camp, and had stolen a horse and the purse of his master. Although de Guise sent back the horse, he refused to return the slave. The reason given was that “selon l’ancienne & bonne coutume de France, qui donne libertĂ© aux personnes, ne permettatit qu’on le pût rendre”.113
Whilst the words of a French military commander might still be easily discarded from a legal point of view, the next case involved the King himself, the “fountain of justice” of the whole Kingdom of France.
Allegedly, in 1580, a galley of the Spanish army had run aground in Calais. The governor of the city then sent a message to the King, who was in the presence of Duke Henri de Guise (the son of the aforementioned Duke of Guise) in Chartres at that moment. The ship contained about 200 to 300 Turkish, Moorish and Barbary slaves. The Spanish ambassador went to the Duke of Guise, and asked him to return the slaves to Spain. The Duke then asked King Henry III to consider the Spanish request, but the King answered that he wanted to have the issue discussed within the Conseil du roi. After having deliberated, the King declared that the slaves were free, on the basis that “en France, où l’on n’usait ni d’esclaves ni de forçats s’ils n’étaient malfaiteurs, il fut dit qu’ils avaient acquis leur liberté”. Given that the French were allied to the Ottoman Empire at that time, and that the slaves were captured in battles between Spain and the Ottoman Empire, the king purportedly even sent these men back to Constantinople by ship. Whether this case truly happened remains subject to dispute. Boulle and Peabody have tried to track down Dom Pierre de Saint-Romuals’s 1662 Journal chronologique et historique, which is believed to be the original source of the story. However, no one has found this story within his work, and some opine that the case might have been apocryphal. In the eighteenth century, however, it was taken seriously.1143.3.3.3 Humanist Writers and the French Freedom Principle
Besides cases and popular histories, the idea of the French freedom principle as a legal principle was picked up by several jurists and lawyers in the sixteenth century as well.
Probably the most famous example is Jean Bodin, who ardently argued in favour of the French freedom principle, and showed himself to be very critical of the institution of slavery.115 Bodin devoted a whole chapter of his Six livres de la RĂ©publique to slavery.
After having discussed the origins of the institution, he questioned whether slavery was natural and profitable to a Commonwealth, or whether it was contrary to nature and unprofitable. Bodin answered this question by summarising the arguments for and against slavery, asking himself which of the two was the better, before coming to the conclusion that slavery was unnatural and unprofitable.116 Bodin (after many references to Greco-Roman slavery) then continued to look at the decline of slavery in Europe. He believed that it started when Muslims had decided not to enslave one another, an idea that was then picked up by Christians around 1250.117 On France specifically, he said that slaves had already disappeared for more than four centuries, and that Louis X had freed all slaves who were willing to pay for this (which is an incorrect view of the content of the 1315 ordonnance). Referring to the several aforementioned cases that Bodin, a native of Toulouse, knew of, he came to the conclusion that France’s soil automatically conferred liberty to slaves.118Bodin was an influential writer, but hardly the only one to come to the conclusion that France’s freedom principle had become a fundamental principle of its law governing persons. Nys, for example, mentioned two other French jurisconsultes who believed that France’s soil conferred freedom to slaves, namely Charles de Grassaille (1495–1582) and Louis le Caron.119 Likewise, François Ragueau (15??–1605), Jacques Cujas’ successor at the University of Bourges, referred directly to the decision of the Parlement of Bordeaux in his 1600 Indice des droits royaux et seigneuriaux to assert that slaves became free upon touching French soil.120
Eventually, even Hugo Grotius picked up the idea in his De iure belli ac pacis, which was published whilst he resided in Paris. According to Grotius, the law of nations regarding captives had not always been observed amongst all nations. As an example, he cited how the ancient Jews had the habit of freeing slaves who came into their territory if the slave had not come into the condition of slavery due to a fault of his own (e.g. as is the case with penal enslavement). Grotius opined that this might be the origin of the then current practice in France, where freedom was also given to slaves entering the French territory. In contrast to the ancient Jews, however, Grotius asserted that freedom “is now granted not only to those captured in war, but also to other slaves of any sort”.121
All this helps to explain why, at the beginning of the seventeenth century, Antoine Loisel believed the freedom principle of France to be one of the fundamental maxims of the French law of persons. In fact, he was just affirming what seems to have by then become a growing consensus amongst French writers.122 Unfortunately, we do not know which source or legal precedent convinced Loisel of the principle, a question with which successive editors of his work struggled as well.123 Somewhat more obscure is his reference that the freedom principle of France only counted for baptised slaves. The origins of this precondition date back to the fifteenth century Italian writers Giovanni d’Anagni and Ange de Gambiglioni. Their works were quite influential at the time, and probably served as the inspiration for Loisel’s requirement of baptism to receive freedom.124 That being said, one should downplay the importance of the exception, as it was no necessary precondition in the works of several other writers, and slowly disappeared over time.125
3.3.3.4 Explaining the Change: Franco-Habsburg Rivalry and Barbary Encounters
Discussing all these expressions of the French freedom principle is one thing. It is more difficult to explain how a principle that was shared by some cities in the fifteenth century, was suddenly elevated to the national sphere.
One explanation for this change focuses on the rivalries between France and the Habsburg Empire in the sixteenth century. When France and Aragon had good relations, the French king was clearly willing to do away with municipal freedom traditions. So the argument goes that the inverse makes sense as well. When relations were bad, the French king had no incentive to act against the freedom principle, if the primary result would be Spanish slaves fleeing to France. One argument in favour of this thesis points to a 1553 prohibition of Emperor Charles V in Spain to export slaves from his territories to France under penalty of a lifetime sentence to the galleys.126 Likewise, one has to remember that Spain and Portugal were already heavily engaged in the Atlantic slave trade, whilst France still had to make its first inroads into the Atlantic at the end of the sixteenth century. Writers such as Bodin thus cannot have had much to lose when they indirectly exposed the Iberian barbarity of the slave trade, by criticising the institution of slavery.127
Besides the French-Habsburg rivalries, recent historians have looked to the other side of the Mediterranean to explain the national French freedom tradition. During the sixteenth century, the Ottoman Empire conquered much of North Africa. Located far from Constantinople, these areas nominally became regencies of the Sublime Porte, but retained some autonomy in practice. This area would become known as “Barbary”. Just as had happened in the Reconquista, Muslims and Christians often enslaved each other in this area, as Barbary pirates seized Christians both on sea and on land (going as far as Iceland).128 For the majority of Frenchmen, the “face” of slavery in the sixteenth century must have been that of French Christians being captured as slaves in one of the Barbary ports, thus explaining the antislavery sentiment. In this view, the French freedom principle was more about self-preservation than about protecting others.129 That being said, the Barbary encounters went both ways and there was a small presence of Barbary slaves in Southern France as well. The freedom principle clearly seems not to have counted for them, as we will discuss in the next chapter.