7.3.4 Law in Books Versus Law in Society
Whilst the focus of this work has been on the law, as it was moulded by “Judges, Legislators and Professors”, to use the words of the eminent legal historian R. C. Van Caenegem, I do believe that my approach needs to be relativized.
Clearly, one should also take note of the broader perspective. Such an approach also allows me to point to the danger of Hineininterpretierung. Lawyers nowadays are used to treating legislation as the highest source of law, and often closely evaluate the exact words of a statute, in order to know its application. Legal historians are very wary of using the same framework when looking at the Early Modern Period. Centralised legislation was often part of a dialogue between the centre and the local echelons of society. Legislative acts were not always well-published, and did not really lend themselves to a word-per-word exegesis, much as lawyers do nowadays. Finally, the law was often a coincidence, very much dependent on the historic conditions at the moment of promulgation, and not necessarily preceded by discussions on long-term policy.34 Because of such factors, we need to go “behind the law” and look at everyday conditions as well.In all of the cases discussed, only the Parisian courts consistently upheld the freedom principle, whilst English courts went for a “middle of the road” solution. The courts of the United Provinces were clearly ambivalent concerning the application of the freedom principle as well. Such a narrow focus tends however to obscure one point. Let us revisit the number of black people who came to Europe. For England, there were somewhere between 10,000 and 20,000 black people. In France, at its height, a presence of 4000–5000 blacks. For the United Provinces, a total of 700 blacks at the very least. A sizeable part of these persons came as slaves. Combine this number with some of the sixteenth century pronouncements of the freedom principle, which held that “Slaves become free as soon as they set foot on our land”.
Clearly, this was not the lot of the great majority of the personally unfree part of this black presence. All indicators show that many legal professionals and, more general, society at large condoned the presence of slaves.The Low Countries? In the sixteenth century, we found instances of sales of slaves and manumissions in Antwerp. In the United Provinces, we noted much the same. Several notaries at least did not consider slavery to be illegal in the metropolis, for how else could they make notarial deeds dealing with the presence of such slaves? Finally, Oostindie’s numbers showed that 627 out of the 656 Suriname slaves who came to the metropolis, also returned to the colonies.
England? The same holds true. The issue has been best discussed for Scotland by J. W. Cairns, but proof of manumissions can be found in England as well.35 Most remarkably, we noted that there is evidence which strongly suggests that small slave markets once existed in several English cities. Likewise, various advertisements for runaway slaves (although the term slave was not necessarily directly used) were to be found in newspapers. Again, the number of slave cases was negligent in comparison with the true size of the enslaved population.
Even in France, the many pronouncements in favour of liberty have to be taken into perspective. First of all for Paris. It has to borne in mind that at the same moment when the Admiralty of France was freeing slaves, its clerks were registering declarations of the arrival of slaves, much as they were doing elsewhere in France. Second, numbers give us the same sense of perspective. It is certainly true that Parisian courts freed at least 154 slaves and registered 93 acts of enfranchisements. However, there were at least 606 slaves who arrived in Nantes between 1740 and 1777, 653 in La Rochelle between 1719 and 1777, and 1024 in Bordeaux between 1720 and 1770.36 And that number does not even take those slaves which were not registered into account.
Even after the Age of Revolution, we noted that slaves sometimes came to the metropolis. Certainly, in countries such as England, where abolitionism had become a popular movement in the final quarter of the eighteenth century, this was more difficult. But even there, masters could use the trick of an indentured servitude for a while, in order to be able to take some blacks with them to the colonies. More clearly, we noted how small numbers of black slaves could still be found in both the United Provinces and France in the early nineteenth century. Only right before these countries abolished slavery in their empires, was the personal status of slaves who came to the metropolis conclusively settled.
All in all, the gap between a doctrinal pronouncement of the freedom principle and the reality on the ground was incredibly large. For the great majority of slaves, the European soil was as unfree as that of the colonies.