3.1 Introduction
That brings us to the crux of the issue, the central question, namely the development and evolution of a so-called freedom principle in the English, French and Dutch legal orders.
To recap, the principle held that enslaved people were freed as soon as they crossed a particular state border. According to Seymour Drescher and Sue Peabody, this started as a local, popular tradition. They held that it was consolidated in legal writing in France, England and the Low Countries by the sixteenth century.1 I will not look too much at this popular perception but will focus on the legal aspects. This means that I will assess whether the laws of these countries indeed knew of such a principle, and what its origins were. As a side note, I wish to stress that, before the end of this period, England, France and the United Provinces only had a marginal interest in the Atlantic slave trade, which was dominated by the Iberians until the second half of the seventeenth century. This was not true for the period afterwards, which will be discussed in the next chapters.For England, Peabody pointed to legal writings in general, with Drescher mentioning the diplomat Thomas Smith (1513–1577) and the English priest William Harrison (1534–1593) as proof of a national freedom principle.2 Respectively, they wrote De Republica Anglorum (first published in 1583) and the Description of England, two books on the social and political life of Tudor England. Smith stated that, when talking about villeins regardant and villeins in gross:
Neither of the one sort nor of the other have we any number in England. And of the first I never knewe any in the realme in my time: of the seconde so fewe there be, that it is not almost worth the speaking. But our lawe doth acknowledge them in both those sortes.3
Harrison went further. In discussing “Degrees of People” in Elizabethan England, he claimed that:
As for slaves and bondmen, we have none; nay, such is the privilege of our country by the especial grace of God and bounty of our princes, that if any come hither from other realms, so soon as they set foot on land they become so free of condition as their masters, whereby all note of servile bondage is utterly removed from them.4
Smith and Harrison were neither common law practitioners nor judges, so we will have to assess whether it was truly legally so that slaves became free upon arriving in England.
To do so, we will first assess the demise of villeinage. Likewise, two interesting cases deserve our attention, namely the English Vagabonds Act of 1547 and Cartwright’s case of 1569.The same tradition purportedly existed in France. Eighteenth century slavery cases in France teach us much of the perceived origins of the French freedom principle, as some of the memorials of slaves’ lawyers that pleaded for the freedom of their client in court were printed. Christianity, looking favourably to the practice of freeing slaves, was one of the sources usually given.5 Second, an obscure 1315 ordonnance of King Louis X (Le Hutin) was sometimes cited. Third, a host of historical precedents offered additional testimony in favour of the slave’s freedom. These precedents consisted of a plethora of cases, popular stories and scholarly writing from the fifteenth and sixteenth century and were often linked to the French city of Toulouse.6
The freedom principle tradition of the Low Countries has also been traced back to the sixteenth century, although Drescher believed that it only broke through in the Southern Netherlands, the part that remained Spanish and later Austrian after the North broke away in 1581, in the beginning of the eighteenth century.7 Generally, scholars refer to such cases as the arrival of a slave-ship in Middelburg in 1596, in which the States of Zeeland (Staten van Zeeland) decided to free the Moorish slaves aboard the ship, as an expression of this tradition.8 Likewise, writing at the end of the nineteenth century, Ernest Nys noted that the idea of slaves becoming free upon their arrival in the Low Countries had become widespread amongst scholars of the sixteenth and seventeenth century. He cited Groenewegen van der Made, Arnold Vinnius, François Zypaeus, Antoine Perez, Libert-François Christyn and Antoine Knobbaert, each of them belonging to the top-notch of sixteenth and seventeenth century legal scholarship in the Low Countries, as authorities in favour of this proposition.9 Finding the origins of the freedom principle in the Low Countries from a legal perspective is more difficult and has hitherto been largely neglected by most scholars. I propose that three factors were relevant, and we will discuss all of them. As for France and England, the decline of serfdom is a factor worth discussing. Second, city charters also played a role. Finally and, for me, most importantly, a landmark case in 1532 triggered scholars to proclaim the freedom principle in the Low Countries, although the specifics of what that freedom entailed could differ.
I will make a conclusion for each country separately in this chapter but will refrain from conducting a comparative analysis until the final chapter.