8. General Conclusion—The Soil of Europe: Free or Unfree?

The goal of this book was to enquire how the so-called freedom principle developed in the legal order of France, England and the Low Countries during the Early Modern Period. This principle held that slaves became free upon crossing certain territorial borders.

In the first chapter, we have set out the prerequisites for our study.

We started by setting out the definition of slavery, in order to delineate the subject of our study. For that purpose, we used the internationally recognised definition of slavery, as set out in the 1926 Slavery Convention: “(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. Whilst noting the ambiguity of some of the characteristics ascribed to being in the state of slavery, the definition was found useful in order to delineate slavery from serfdom, that institution which was also pervasive in Medieval Europe.

We then looked at the legal justification of slavery by lawyers and philosophers, from Greek times to the dawn of the Atlantic slave trade and beyond. The key term here was “continuity”. Only in the second half of the eighteenth century, with Vattel’s Le Droit des Gens, did we start to see some moral qualms regarding the institution of slavery. And before? The institution was broadly seen as legitimate, but the pendulum swung between two conceptions. Scholars as diverse as Sepúlveda, Thomas Aquinas, and to a certain extent even at times Hugo Grotius, showed that Aristotle’s idea of “natural slavery” never fully perished away before the decline of slavery in the nineteenth century. Yet, certainly in the seventeenth and eighteenth century, the dominant attitude seems to have been more in line with the Roman inclination.

One of the greatest legal edifices of the Christian Middle Ages, the development of just war doctrines, did however show one of the changes in comparison with earlier times. In contrast to Greek and Roman life, slavery did start to progressively disappear in Western Europe. As a result, writers started taking note of this at the end of the Middle Ages, pointing towards the European custom of not enslaving each other’s troops any longer, and instead developing intricate systems of ransom and hostage-taking. Whilst the Catholic Church played a role in this development, it was primarily a complex set of economic and political reasons that helped towards this development.

That did not mean that unfreedom suddenly disappeared in Western Europe. Instead, we took cognizance of the debate concerning the transition from slavery to serfdom in Western Europe. If the institution was still well alive going into the Carolingian Era, it had practically perished in all but the fringes of Southern France by the twelfth century. The reasons behind this transition remain somewhat shrouded in mystery. Be it because of economic reasons (Marc Bloch’s predominant factor), because of a transformation in society after the Roman era (more Marxist), or a “feudal transformation” around the year 1000, slavery disappeared and serfdom came in its place. The chaotic circumstances of the Dark Ages defy all-encompassing definitions, and the exact meaning of what a serf was could change significantly from one place to another. Some of the general characteristics (and with the risk of anachronisms) can be noted here.

Despite the disappearance of slavery in France, England and the Low Countries, we noted how scholars as diverse as Zouche, Grotius and Vattel still took slavery into account in their writings. One can fairly presume that what they had in mind, was the then growing commerce in men erupting on the boards of the Atlantic. First the Portuguese and the Spanish, but soon afterwards the English, French and Dutch all started using black slave labor to fuel their Atlantic economies. Even though slavery had disappeared from their metropolitan soil, there were remarkably little moral or legal qualms in any of these countries to resuscitate slavery in the Atlantic, some early writing criticizing the Spanish slave trade notwithstanding. Either through metropolitan acquiescence (England), royal intervention (France) or a reversal to Roman law (Dutch Republic), Atlantic colonies soon developed elaborate ways to regulate the lives of black slaves on their soil. The expansion of these systems raised one obvious question: would colonial slavery be recognized when a slave touched the soil of Europe?

This book has tried to answer that question in the second and third part, before engaging in a broad, comparative approach in the final part.

The second part focused on unearthing the origins of what have been seen as “freedom principle traditions”, focusing whether and how the principle was legally grounded.

For England, we focused first on the decline of villeinage after the Black Death.

Things stood rather differently in France. Whilst the claim was sometimes made from the sixteenth century onwards, slavery was certainly not legally abrogated by the French King in 1315. Though still often repeated in literature, the famous ordonnance of 3 July 1315 had a far more limited scope, and dealt with serfs, not slaves. That serfdom was indeed on the decline in France.

Finally, the Low Countries were subject to many of the same forces. Serfdom was also in decline here in the later Middle Ages, and even disappeared in some regions a bit earlier than elsewhere, undoubtedly driven by the relative affluence of cities in this region.

In the third chapter, which dealt with the period 1650-1800, we tested where the rubber hit the road. Even in the case of France and the Low Countries, dealings with slavery had mostly been accidental and occasional in nature. However, with the rise of England, the Dutch Republic and France as slave traders themselves, the freedom principle was put to the test.

Even allowing for the inherent uncertainty in numbers, England was clearly the country where the black presence was the highest, with a clear concentration in London. Parliament’s answer to the legal problem of unfree blacks on English soil was one of complete silence. The English common law courts were mostly left to settle the status of slavery in England. They clearly wrestled with this task all the way from the earliest cases at the end of the seventeenth century, up until the final abolition of slavery across the English Empire in 1833. Whilst there is a good argument to make in favour of a confused state of the law up until Somerset, Van Cleve’s conflict of laws framework is very attractive. Common law courts seemed to be creating some form of “near slavery”, in which some consequences of slavery were allowed in England, but some were not. Meanwhile, different judges had different ideas about the colonial repercussions of decisions under English common law, and might have taken this into account when making their decisions. What is sure is that the freedom principle stood at its nadir in England with the advent of the Yorke-Talbot Opinion, which, as a matter of private international law, can be seen as a statement in favour of recognising slavery on English soil. But even if Somerset clarified that Yorke-Talbot was clearly not written in stone, neither did Mansfield free all the English slaves. For that, abolitionist efforts in changing people’s mind, and agency by black slaves fleeing their masters were more seminal. This abolitionist attitude went bottom-up through the English court system, as first local courts and only few decades before eventual abolition, the superior English common law courts, became convinced that England itself was indeed a land where the soil had to be free.

In the case of France, we find a strange, early dichotomy. Despite the seemingly strong freedom tradition, I showed how the issue of Turkish galley slaves remained remarkably non-controversial in France. The weak sophistry by the Count of Maurepas aside, who argued that there was an exception to French freedom for those slaves that were bought from countries where the slave trade was established (an argument equally valid for African slaves), the lack of contemporary discussion between French freedom and galley slavery remains surprising. This is all the more so, given that the early presence of black slaves does show this tug towards re-asserting the freedom principle, as slaves were freed in the few lucky cases where their case was heard. This early, more liberal attitude did not stay in place long. The French king made his first inroads into the freedom principle in 1716, before mostly voiding the principle of any value in 1738. Whilst these laws were influenced by those regions in France having the most benefits from the slave trade, a more “racial” attitude soon came in its place. With the declaration of 1777, the King tried to eradicate France of any black presence, but this and subsequent attempts ended in failure. This failure was, by the way, broader than just 1777. Before then, it could be said that Paris boycotted the King’s legislation, by consequently declaring slaves free who petitioned for it. But look at Nantes or Bordeaux, and one gets the reverse image: complacent, even positive about the royal legislation before 1777, but unhappy with the negative effects of the declaration of 1777 on what was seen as slaveholder property. Although the issue was formally put to rest with the re-recognition of the French freedom principle during the Revolutionary era, subsequent French governments almost continuously switched in their attitude towards the freedom principle. As in England, it was only just before the second abolition in 1848 that the freedom principle was fully guaranteed.

Finally, there are the Low Countries. The Southern Netherlands’ attitude remained mostly similar by confirming the freedom principle. However, given the very minimal involvement of this region in the colonial ventures, and the consequent minimal to non-existent black population, the question remained mostly theoretical. We know more about the United Provinces. Somewhat surprisingly, the early battle between the freedom principle and slaveholders’ interests was also rather subdued here. The cases of slaves claiming their freedom remained minimal before the second half of the eighteenth century, although indications of a recognised freedom tradition did come up at times. What is certain though, is that the Dutch had no qualms with sending stowaways back to the colonies, in a clear show of defending colonial property. This monograph has also engaged in an extensive discussion of the Dutch placaet of 1776, which had hitherto remained largely untouched in archival records. We have shown how, although formally enacted by the States General, the process was fully pushed by the province of Holland. Fearful of the precedential value of some particular cases in which slaves had received their freedom, Holland forcefully pushed the case for itself, its bankers, and its Surinam planters. The result was clear limitations to the freedom principle, and subsequent cases show a concerted effort to enforce the placaet. The placaet quickly seems to have been forgotten, and the legal issues concerning black slaves in the Republic subsided, and probably became less of an issue as the English temporarily took over Surinam during the Napoleonic Era. Whilst the Dutch civil code of 1838 solved the question in favour of a clear and unambiguous confirmation of the freedom principle, we know little of the previous 30 years, and should point out that by 1838, slavery had fallen into moral disrepute already in Europe.

Finally, in the previous chapter, we considerably expanded upon previous work in the field by engaging in a wide-ranging legal comparison of the freedom principle from a pan-Western European perspective. Although much of the literature has tended to equate the strength of freedom traditions in different countries, my comparison has shown that this needs to be nuanced. Clearly, the legal foundations of the freedom principle were already well-grounded in sixteenth century France and the Low Countries, but less so in England. Whilst the unclear case of Cartwright is the closest we have of a confirmation of the freedom principle in England, we found a stronger string of cases and scholars asserting the freedom principle in the Low Countries and France. One should however not assume that the English common law was more “tolerant” of foreign slaves. In fact, much of the reason why the tradition could develop elsewhere was because Spanish and Portuguese connections ensured a small stream of foreign slaves touching Dutch and French soil, something which was less the case in England. The application of the freedom principle during the heyday of the Atlantic slave trade also showed interesting differences and similarities. I have proposed that legislators only intervened in the issue during “moments of crisis”, namely when planter interests managed to capture the ear of those powerful enough to make legislation. This happened in France in 1716 and 1738 (the 1777 declaration also following upon a “crisis”, but not much to the benefit of the planters), and in the Dutch Republic in 1776. In the case of England, my contention is that such a crisis did not appear before 1772, many planters probably being satisfied with the “near slavery” status quo, as well as the Yorke-Talbot Opinion. Likewise, court outcomes varied substantially. Only in Paris did slaves consistently receive their freedom, whilst the courts of Nantes, Bordeaux, London and the Dutch Republic cannot be seen as upholders of slave’s rights.

However, what struck me the most during the researching and writing process of this monograph, was the contrast between the law in a strict sense, and the broader situation on the ground. The great majority of slaves did or could not petition for its freedom in a metropolitan court, and a large number were taken back to the colonies, continuing their lives as slaves. That situation as it existed for the thousands of black slaves who were once on European metropolitan soil, necessitates me to make an admittedly bleak conclusion. Most certainly, it was not the case that slaves coming to France, England or the Low Countries in the Early Modern Period immediately received freedom upon touching the soil of these countries, as some sixteenth century scholars held. Slaves had to assert this right in court, and the outcome was uncertain everywhere but in Paris for a while. Governments did not protect the slaves either, as both the French and the Dutch government limited their freedom, and English Parliament turned a blind eye towards slavery. True, the air of Europe did become progressively “clearer” starting from the end of the eighteenth century, first in England and later on in France and the United Provinces. But if slaves hoped to receive recognition by the law that a stay in the metropolis had given them permanent, unencumbered and universal liberty, they would only get this guarantee at a very late stage. It was only right before the abolition of slavery, when the institution itself was in decay, that slaves coming to the metropolis could be assured of their freedom. Only then was the soil truly free.