7.3.3 Other Differences and Similarities
The most remarkable difference might be the sheer amount of cases we have come across.26 In the Low Countries, we only discussed a handful of them. In England, about a dozen.
In sheer contrast, we know that there were 154 cases in the Admiralty of France alone between 1730 and 1790! And to this, we can add a hitherto unknown number of cases at the other admiralty courts. How do we explain these remarkable differences?A first explanation comes down both to sheer numbers and the state of research: in the United Provinces, the black presence was rather small, which explains the smaller number of cases. At the same time, we need to bear in mind the state of research. The focus in England has been on the reported cases that came before the central courts, and it might be that there still are quite some other cases which came before local courts. In the Unites Provinces, we can be reasonably sure that no more cases came before the Supreme Court of Holland and Zeeland (thanks to the notes of Van Bynkershoek and Willem Pauw), but it is highly likely that municipal court archives would be able to tell us of more cases which involved black servants/slaves taken to the Republic.
Even taking that factor into account, this does not explain the stark difference between France and England. The main reason to explain the difference between those two countries probably has to do with the Yorke-Talbot opinion. Given the clout of its writers, it is highly probable that the well-known opinion foreclosed most lawyers or clients’ appetite to assert a slave’s freedom in court, as they must have judged that their chances of winning would be minimal.27 For example, it is highly relevant to note that in the two cases right before Somerset v. Stewart (the case of Jonathan Strong and Hylas v. Newton), Granville Sharp remarked that the slave’s lawyers pointed to the Yorke-Talbot opinion.
In Hylas v. Newton, the lawyers even only asked money damages because they were cowed by the opinion.28In contrast, the several well-known cases in France, those with memorials being printed or to be found in collections such as the Causes célèbres (Jean Boucaux v. Verdelin), all went in favour of freedom. The case of Francisque was even decided by the Parlement of Paris, the most important court of the country. Next to that, the French admiralty’s registration effort in 1762 must have highlighted questions of personal status. We find no well-known cases in the Low Countries, and Somerset’s case was the first and only (very) well-known case in England.
Another difference which might come into play in explaining the different number of cases is monetary. In England, we noted how Mansfield (in The King v. The inhabitants of Thomas Ditton) said that he had never awarded back wages to slaves, and no other judge seems to have awarded this either. In Paris, on the other hand, many slaves did ask for back wages in their requests, although probably only a small number of slaves eventually received them. As most slaves did not boast large financial reserves, the incentive for a lawyer to take a slave case might have been smaller in England than in Paris, unless all lawyers involved were acting out of humanitarian motives.29 If such in not the case, the hopes of profit, combined with the prospect of a certain favourable verdict, might have swayed some Parisian lawyers to take on these cases.30
Finally, one must keep in mind that, in all countries under discussion, the slaves that were taken to the metropolis were often the master’s favourites, and thus in a relatively good position vis-à-vis plantation slaves. The chance of conflict between the slaves and their masters was rather low, and even if a conflict arose, the power balance was heavily skewed in favour of the master. He could always use private violence to try and take the slave back to the colonies against his will.
This can be illustrated by some of the cases described by Granville Sharp before Somerset, where Sharp was only able to petition the authorities just before the slave was irretrievably gone.31Another similarity was the legal uncertainty concerning the relationship between baptism and freedom. Not all European colonisers wrestled with this problem, as Portugal routinely baptised its slaves before sending them to the Americas.32 The idea started to fade at the end of the seventeenth century in France, because of the Code Noir’s provisions on baptism. In England the idea seems to have lived on for a longer time, and the Yorke-Talbot opinion, which was likely inspired by missionaries, tried to get rid of it. For the Low Countries, we have seen how baptism was certainly taken into consideration in the sixteenth century precedents, but did not find it discussed later on. The idea was disposed of by a decision of the Classis of Amsterdam, though it is unclear whether this was also done with the metropolitan context in mind.
The role of scholars in the promulgation of the freedom principle was less important at the time of the Atlantic slave trade. In the sixteenth century, scholars were largely responsible for spreading the idea of the freedom principle, on the basis of the few available precedents, and by creating a web of cross-references. In the eighteenth century, most scholars simply continued to reiterate the statements of their predecessors, but took note of the exceptions created by their respective national governments.33 In England meanwhile, scholars such as Blackstone visibly struggled with the issue. This also helps to prove my assertion that in England, the debate on the recognition of slavery as an issue of private international law was more unsettled than elsewhere.
Finally, another recurring theme were the limitations imposed, if and when the freedom principle was recognised. Even if a slave was recognised as free when he came on metropolitan soil, the free air did not necessarily follow him upon return to the colonies. In France, we noted how an early case in 1707 recognized the French freedom principle, but did not extend it to a slave who had voluntarily returned to the colonies and had not claimed his liberty whilst in France. Even in Furcy’s case, this argument was discussed. Likewise, the Dutch placaet of 1776 limited the results of freedom granted in the metropolis. Returnees were treated as manumitted persons, rather than as vrye luyden. Up to Virginie’s case of 1852, the issue was uncertain in the Republic. Again, the same held true in England. In two of the cases after Somerset’s case, namely Williams v. Brown and The Slave Grace, we find the idea that a slave did not take his freedom privilege back with him to the colonies.