6.4.2 Codifying the Dutch Freedom Principle: The Dutch Civil Code of 1838
The Dutch freedom principle was only codified for the first time in 1838. Although Napoléon’s civil code continued to be used even after his downfall, the United Kingdom of the Netherlands, uniting the North and the South once more, soon set to develop a new civil code.
Eventually, this code was only promulgated in 1838, after the South had already seceded to become newly independent Belgium.78 The Dutch freedom principle was finally confirmed at this point, as Art. 2, 2nd part of the new Dutch civil code now held that:Slavery and all other sorts of personal servitude, of whatever nature or under whatever denomination are not to be tolerated in the Kingdom.79
One contemporary scholar used this article to pose himself a hypothetical (?) question: what would happen if a slave from the colonies, who has become free by coming to the territory of the Kingdom, went back to the colonies? Was he a slave or a free person over there? The answer given was in favour of freedom, and three reasons were advanced to substantiate this claim. First, the author believed that it was the intent of the Dutch legislator of 1838 to fully reinstate the freedom principle, as it was enunciated by jurists such as Van Leeuwen in the seventeenth century. The stowaway case of 1736 and the Placaet of 1776 were handily discarded by the author. The decisions regarding stowaways had not created a rigid precedent according to him, noting the court’s lack of motivation for its judgments. The Placaet of 1776, meanwhile, was considered to have been abolished, if not implicitly by the French, than at least explicitly by the new civil code. If slavery would re-attach to the slave, Dutch liberty would be an empty shell. And whilst the Dutch could not, for example, force Russian courts to acknowledge the freedom that a Russian serf who had been in the Netherlands had received, the situation was judged to be different for the Dutch colonies. They belonged to the same Dutch realm. Second, the favor libertatis of Roman law was used as an argument. Finally, an analogy with France was made, as the author noted its 1791 promulgation of the freedom principle.80