7.3.2 The Reaction of the Courts

How did the courts deal with issues of personal status? First, neither of them contended that slavery was part of domestic law. There was one exception to this rule. In the case of Pearne v.

If courts were faced with slavery, they had to deal with it as an issue of private international law. Here, we find some interesting differences. When faced with slave status arising from colonial law, English courts made use of English law. Likewise, when the Parisian courts had to deal with a status which was regulated by the Code Noir in the colonies, they used French law. The Edict of 1716 and the Declaration of 1738 had given the French courts clear guidelines how they had to deal with these issues, but this did not change the situation in the Parisian courts, which reverted to applying the French freedom principle. The Dutch approach was a bit different. In the 1736 case that came before the Supreme Court of Holland and Zeeland, the applicable law was not Dutch law, but Roman-Dutch colonial slave law. Unfortunately, we do not know whether this approach was only used in cases of stowaways, or whether it was extended to other cases as well (for the period after 1776, the Dutch placaet gave explicit guidelines on stowaways, and recourse to Dutch law would then have become the more obvious option).

Some arguments used by counsel were different, and some were similar. For example, lawyers tried to use extra-legal arguments on both sides of the continent. In Somerset v.

At the same time, there were some interesting distinctions in arguments used. In the two best reported English cases (Chamberline v. Harvey and Somerset v. Stewart), the crux of the argument is the question to what extent black slavery could be equated with English villeinage. The slave’s lawyer would hold that it could not be equated, thus “albifying” villeinage, as one scholar called it.¹⁸ The master’s lawyers would use villeinage as an argument in favour of respecting an unfree status, slavery, conferred under colonial law.¹⁹ In the French published cases, we do see references to serfdom, but it is hardly the backbone of the argument.²⁰ One reason for this might be that the English law of villeinage was a well-developed part of the common law, and that English lords had been more effective in tying their villeins to the land. The characteristics of French serfdom were more dependent from region to region, and some of the lord’s rights over his serfs had been abolished over time.

Unlike in England, in the French cases, the freedom principle is taken for granted. For example, in the case of Jean Boucaux v. Verdelin, both lawyers and the procureur du roi acknowledged that, in principle, the French soil rendered slaves free. The real discussion in court then, was whether there was an exception to the French freedom principle at hand.²¹ The edict of 1716 and the declaration of 1738 were, of course, the easiest means to assert such an exception.²² Another tack was possible as well, such as the one used by the lawyer of the slave Francisque. He tried to show that Indian slaves did not fall under the restrictions on the freedom principle, by focusing on his Indian heritage.

Why this difference in arguments? This is mostly an issue about the possible means to get to the same result. If a slave wanted freedom in France, the question was whether the French freedom principle applied or not. This straightforward way of asserting the freedom principle was lacking in England, and lawyers had to use a two-step approach. They had to plead that the only kind of unfreedom recognised by English law is villeinage and then that the status of blacks coming to England ought to be governed by English law, but that these black persons were no villeins. Following those two steps, the slave’s lawyer could then assert that the slave was free, whilst the opposing lawyer could argue that the slave’s status ought to be respected up to the limits of what the law of villeinage allowed for. We do not know enough of the arguments used by Dutch lawyers. The stowaway’s lawyer referred to the precedent of the Great Council of Malines to assert the freedom principle, and in the case of Blondin and his family we also find the idea of the freedom principle for non-stowaways, which is more in line with the arguments used in France.

The substantive outcomes of court decisions varied as well. In France, we noted how there was a bifurcation. The Parisian courts constantly upheld the French freedom principle, freeing every slave who petitioned them. Whilst French courts did not motivate their judgments, we can infer that the Parisian courts did so on the basis of non-registration of the edict of 1716 and the declaration of 1738. This is clearer after 1738, given that the declaration of 1738 required the courts to declare that slaves were confiscated au profit du roi, in case the administrative provisions of the Declaration were not met. We lack exact data for the admiralty courts at the Atlantic seaside, but can presume that they respected the legislation, given their respective Parlements’ registration of the laws, and the example of Catherine Morgan’s case.

If French courts either clearly refuted or clearly recognised colonial slavery, the English courts went somewhere in between—that is, if we follow Van Cleve’s reasoning, as most other scholars believe that the case law was contradictory or unsettled—. The few cases that came before Dutch courts all upheld slavery, but again, we only know of cases involving stowaways, a special category by any measure.²³ Given that we do not hear of Blondin & Cicero anymore after the States of Holland asked the Holland courts to assist their creditors in retrieving them, we can suppose that the courts did not protect them.

Finally, in contrast to their English counterparts, French courts could pronounce a judgment in favour of the slave’s liberty, without this having legal consequences for the colonies.²⁴ The relationship between French metropolitan law and colonial law on slavery was quite clear, given that there was explicit royal legislation, the Code Noir. Likewise, a Dutch decision would not have had adverse legal consequences on colonial slavery, which was explicitly regulated by provisions of Roman law. English courts did not have this luxury, and the pronouncements made by them on slavery might well have reflected an individual judge’s beliefs on the relationship between English colonial and metropolitan law.²⁵ This was a belief in “one imperial law” according to Hardwicke, but one of strict independence between colonial and English law in Holt’s vision. Likewise, this approach might explain why Mansfield grounded his ruling in (the lack of) positive law, not common law.