3.4.3 The Low Countries: The Development of a National Freedom Tradition: Theoretically Created, Practically Ignored

3.4.3.1 The Case of the Slave Simon

Whilst the road for the introduction of a nationwide freedom principle was paved by the decline and virtual disappearance of unfreedom in the Low Countries, as well as municipal town charters, it is my contention that it was a 1532 case that triggered the idea that slaves became free upon their arrival in the Low Countries.

In 1532, the governor (landvoogd) of the XVII Provinces, Mary of Austria, asked the Great Council of Malines (Grand Conseil de Malines) for advice regarding a request that was received by the central authorities. This court was the “supreme court” of the Low Countries. It had been created in the fifteenth century to bring about a certain degree of centralisation in the areas under the control of first the Burgundian dukes and then the Habsburg monarchs.¹⁵⁴ What did Mary ask for exactly?

The Portuguese ambassador in Antwerp, where Portugal had strong commercial interests, apparently owned a slave named Simon. The slave had accompanied his master when travelling to the German city of Mainz but suddenly escaped and remained at large somewhere in the XVII Provinces. A representative of the Portuguese embassy sent a letter to the Emperor (Charles V), and asked him to make lettres patentes which would order all his officers in the Low Countries to capture the slave as soon as they would see him, and deliver him back to the embassy. The Portuguese representative legitimised his request by referring to Spanish customs, noting that the slave belonged to the ambassador, as he had bought him at the time.¹⁵⁵

The request was picked up by Mary of Austria.

She already received an answer from the Council one day later. It gave a very short advice in which it recommended that Mary deny the request of the Portuguese representative. The councillors held that the nature and liberties of the XVII Provinces had to be taken into account. In this region, slavery was unknown, and therefore, the request should be denied.¹⁵⁸ Unfortunately, we do not know how the Great Council of Malines exactly came to this decision. Of course, unfreedom must have mostly seemed like a thing of the past for the Council. Slavery had long since been gone from the XVII Provinces, and at most, an occasional serf could still be found. Maybe they had taken the customs of Antwerp into account. Although these customs did not provide for it explicitly, one could well deduce from Art. 36 I–II that the Antwerp authorities ought not to help masters to enforce their rights against slaves. Or maybe the council did not want to make a precedent that would seem to recognise slavery in the XVII Provinces.

One does have to bear in mind that this advice was no blanket enunciation of the freedom principle. The Great Council of Malines did not say that a slave became free as soon as he touched the soil of the XVII Provinces. The advice only implied two things, namely (1) that slavery was not recognised by the domestic laws of the XVII Provinces and (2) that the authorities of the Habsburg Netherlands ought not to render assistance to a slave-owner who has lost his slave in these countries and tried to reclaim him.

3.4.3.2 Developing the Tradition in Scholarly Writing

The decision of the Great Council of Malines was one thing. It being known by people was another thing as there were no collections made of the case law of the Great Council of Malines until Paulus Christinaeus (1553–1631) published one in 1626.¹⁶⁰

On the basis of the references that were made by Simon Groenewegen van der Made (1613–1652), a Dutch jurist who cited many authorities on the question of what happened to slaves arriving in the Low Countries, I have tried to reconstruct the spread of the case, and its transformation into a clear affirmation of the freedom principle.

The decision of the Great Council of Malines seems to have spread quickly. The first reference I found to it was by Nicolas Clenardus (1495–1542), a Flemish grammarian with an ardent interest in the Islamic world, and who lived for a while in Fez. In 1541, he wrote a letter to the abbot of Tongerlo, in the Duchy of Brabant. Clenardus was well acquainted with slavery (a slave had learned him Arabic), and he decried that he had heard about a decision of the Great Council of Malines, which decided that slaves became free upon touching the soil of these territories.¹⁶¹ Clearly, this was a very broad interpretation of the actual content of the Council’s advice.

Possibly interested by Clenardus’ reference, the next person to mention the freedom principle was Johannes Molanus (1533–1585). A theologian studying and living in Leuven, Molanus wrote a book on canon law (De Canonicis. Libri Tres) in 1572. In this book, a separate chapter was devoted to the question of what happened when slaves came to the Low Countries (“Quando inter Belgas servi & libertine esse desierint”). As part of this chapter, Molanus referred to the case that had come before the Great Council of Malines, noting some details of the case and its exact date.

This reference was then picked up by Petrus Gudelinus (1550–1619), a jurist from Leuven who wrote De iure novissimo (posthumously published in 1620). In this book, he tried to compare the private law of the Low Countries with Roman law.¹⁶³ He also asked what happened to slaves who came from the Iberian Peninsula to his region. After noting that they became immediately free upon arrival in France (referring to Charondas, the writer who mentioned the 1538 case of the Greek slave), he duly followed what Molanus said. On the basis of the precedent that the Great Council had set, he also believed slaves to become free upon arrival in the Low Countries.¹⁶⁴

From that moment onwards, a plethora of scholars started to refer to this freedom principle as a fundamental maxim of the law in the XVII Provinces. It has to be borne in mind that the decisions of the Great Council of Malines did not have precedential value, nor was the court recognised as being sovereign in several of the XVII Provinces. Scholars did not seem to bother too much about this, and various variants of the idea of freedom spread in sixteenth and seventeenth century works both in the Spanish Netherlands and the United Provinces.¹⁶⁵

In the Spanish Netherlands, we find the same expression of the freedom principle mentioned in for example Franciscus Zypaeus’ (1580–1650) Notitia iuris Belgici, Paulus Christinaeus’ Practicarum questionum rerumque in supremis Belgarum curiis actarum et observatarum decisiones, and Jean-Antoine Knobbaert’s (d.

In the United Provinces, we find various writers giving credence to the idea of the freedom principle as well. For example, we find similar pronouncements in Simon Groenewegen van der Made’s (1613–1652) Tractatus de legibus abrogatis in Hollandia and Arnold Vinnius’ (1588–1657) Institutionem imperialium commentarius in quatuor libros.¹⁶⁹ Interestingly, Groenewegen van der Made (and in his wake Vinnius) made reference to the customs of Antwerp. Possibly due to that factor, Groenewegen van der Made came to a slightly different pronouncement of the Dutch freedom principle, as he held that:

And its name at this time hath grown out of use among us. So much so indeed that slaves who are brought from hither from elsewhere, so soon as they shall have entered the limits of our government, even against the will of their masters, can appeal to the judiciary [ad libertatem proclamare possint], in behalf of their freedom.¹⁷⁰

That is not to say that we do not find blanket enunciations of the freedom principle, which did not require recourse to the courts, in the United Provinces. For example, in Simon van Leeuwen’s (1626–1682) Het Rooms-Hollandsch Recht, we find another scholar arguing in favour of instant freedom for slaves coming to the territory of the Republic (“de Slaaven ende Lijf-eygnen, die van andre Wijken hier gebragt warden, so haast als sy de Grensen van onze Landen genaakten, metter data, in weer-wil van hare Heeren ende Meesters, voor vrye lyden verklaart werden”).¹⁷¹ The freedom principle was thus widespread in scholarly writing in the seventeenth century, both in the United Provinces and the Spanish Netherlands.¹⁷²