3.4.2 “City Air Makes Free”: Cities and the Decline of Serfdom
One of the reasons that is usually given for the decline of serfdom in the Low Countries has to do with the vigorousness of the cities in the Low Countries, with urban development being especially important in Flanders in the early middle ages.
By the end of the fifteenth century, Flanders, Brabant and Holland (the three most important provinces of the Low Countries) had all become highly urbanised. This begs the question as to the role cities might have played in the eventual enunciation of a nationwide freedom principle for slaves.139The same proviso as elsewhere is in place. The idea of “one year and one day” as a form of extinctive prescription existed long before the appearance of city charters.140 That being said, “the waning of serfdom was related to the rise of the towns”, as the eminent Belgian legal historian Van Caenegem stated.141
As noted by that same author, there is no indication that a general principle of Stadtluft macht frei was in sway in Flanders in the first half of the twelfth century142 (or elsewhere for that reason, as the work of Léo Verriest for the County of Hainaut can attest for example143). Yet clearly, personal freedom was connected to urban areas in one way or another. One famous example involves a case reported by Galbert of Bruges, a twelfth century chronicler from Bruges.144 When the Flemish count William Clito (1102–1128) arrived in the city of Lille with his retinue in August 1128, he spotted one of his runaway serfs. After arresting him in order to be sent back, the city went into an uproar. It is a bit unclear what the townsmen were asserting. It could be that they wanted to preserve the freedom of the runaway serf, or that they were defending the special peace that protected their market, or that they wanted the Count to resort to a judicial process.145 Whichever of these was the case, this case shows that urban municipalities were in a better position to assert the personal freedom of their citizens.
The principle of “city air makes free” as applied to serfs itself, was also to be found in municipal city charters of the later Middle Ages. It was not to be found in municipal charters before the second half of the twelfth century. In fact, the principle had only just appeared in Southern France in the early twelfth century, and it took another half-century before it first appeared in a Flemish charter, namely that of the city of Nieuwpoort in 1163. Art. 10 of this charter held that “whoever remains here for one year and one day will be free”.146 There are no systematic overviews of which city had and which city did not have freedom provisions, but the provision was far from general in the Low Countries, and the exact terms could vary quite a bit.147 Before the sixteenth century, there are no indications that a slave tried to make use of this principle, but this should not be surprising. Slavery had perished in these areas early on, and societies with slaves, such as Spain and Italy, were geographically distant from the Low Countries, so that it is clear that the original principle simply referred to serfs.
For our purposes, it is interesting to see what the city charters of the two cities that would be most important in the colonial trade had to say on this issue. By 1500, Antwerp had become the most important trading centre of the Low Countries, and it became a major centre of Portuguese and Spanish trading in the sixteenth century. During the Eighty Years’ War, the city was suffocated by the Duke of Parma’s siege in 1584–1585, and more than half of its population fled to the north in the ensuing years.148 That moment marked the ascendancy of Amsterdam, which then became the trading capital for the Dutch colonial ventures.
Although both Antwerp (1221) and Amsterdam (1301) already received their own city laws early on (rights which were subsequently sometimes changed), their customs were only officially written down in the sixteenth century for Antwerp and in 1644 for Amsterdam.149 In the case of Antwerp for this period, besides for the fourteenth century Keurboeck metten doppen, there existed the Antiquissimae of 1570–1571, the Impressae of 1582 and the Compilatae of 1602.
Our focus here will be on the Impressae, because it was the only version of these that was brought to print.150Interestingly, both the city rights of Antwerp and Amsterdam include provisions related to slavery. In the case of Antwerp, article 36, I-II of its city rights, which dealt with the state and condition of persons (“Vanden Staet ende Conditie van Persoonen”) mentioned that:
I. Within the city and surroundings of Antwerp, all people are free and no slaves.
II. The same holds true for all slaves that have come to the city and its surroundings, who are free and outside of the power of their Masters or [their masters’] Wives: and as far as they try to keep them as slaves or have them serve them against their will may proclaim ad libertatem patriae; and can have their Masters or [their Masters’] Wives brought before court and can have themselves proclaimed free there.151
For Amsterdam, almost exactly the same provision could be found in Chapter 39 of its municipal laws.152 This is scarcely surprising, as the city rights of Amsterdam were heavily influenced by Antwerp, in many ways its predecessor as the most vibrant city of the Low Countries. This can be seen from the fact that the Impressae were re-printed several times in Amsterdam. What is more, Gerard Rooseboom, the compiler of Amsterdam’s city rights in 1644, used the Impressae as his model, and it has been asserted that the freedom principle of Antwerp was amongst those provisions copied almost verbatim.153
One thing does have to be borne in mind. Whereas the application of the fifteenth century Toulousian freedom principle held that a slave became free as soon as he set foot on the soil of the city, the provisions of Amsterdam and Antwerp are slightly different. In fact, taken on their face value, they require an action from the slave himself. Slaves coming to the city were held to be free, but if their masters disagreed and kept them as slaves against their will, the slave needed to take matters into his own hands, by having recourse to the courts. These would then declare him free.
In any case, suffice it to say that some cities in the Low Countries also had their own municipal freedom traditions. This brings us to two questions which we still ought to consider. First, how did the municipal tradition become a national principle (and in which of the sources of law could it be found), and how did these traditions fare when faced with genuine slaves?