6.2 Pre-1776: Mixed Outcomes(?)

Especially for the seventeenth and early eighteenth century, it is very difficult to trace the relationship between these slaves and the law. Theoretically, not much seems to have changed.

In 1656, the slave Juliana, who had come with her master to Amsterdam from Brazil, refused to return to the colonies and asserted her freedom. This was purportedly because some persons had made her believe that she was free and not obliged to serve her master in the Dutch Republic. We have no idea whether Juliana ever went to court to assert this right, or whether her master succeeded in taking her back.¹⁹

In 1661, we find another case. The Jewish merchant Moses Netto, who had fled Brazil together with his slave after the Portuguese takeover, wanted to take his morinneke to the Dutch colony Essequibo. The church council (Kerkeraad) of Middelburg opposed this, noting that the slave was baptised and that slaves became free upon arrival in the Republic (“in haere vryheit te laeten na de wetten van onse landen”). That being said, the case seemed to be immersed with anti-Jewish sentiment. Also, the church councils were local bodies of the Dutch Reformed Church who regulated the affairs of the Church within the community, no real courts.²⁰

The best indication that at least some authorities attached weight to the freedom principle, comes from the Dutch Cape Colony. The late Karel Schoeman, a renowned historian of South Africa, found evidence of an instruction that was sent by the Heeren XVII, the governing board of the East India Company, to Batavia (current day Jakarta) and from there to the Cape in 1714.

Finally, some slaves seem to have also known of the idea. Making use of archives in Surinam, Buve noted the story of a former Surinam slave who considered himself to be free once he had arrived in Amsterdam in 1742. Subsequently, the person remained in the city and worked there in the service of the Prussian representative, apparently as a freeman.²²

Besides those few cases, indications are that slaves who did not effectively try to assert their freedom, never gained it for simply having been in the United Provinces. First, Oostindie’s numbers indicate this. From the 656 slaves that travelled to the United Provinces between 1729 and 1781, 627 returned to the colonies as slaves.²³ Second, many local officials did not seem to have made much trouble over the status of slavery. Again, we find examples of various manumissions,²⁴ references to slaves in notarial deeds²⁵ and sales of slaves.²⁶ We lack cases in which the argument of baptism was used, but the idea of baptism bestowing freedom was present in the Dutch colonies as well. In 1747, the Classis of Amsterdam declared that “the acceptance of Christianity…does not make servants, male and female slaves, free persons”. It is unclear whether this message was only meant for a colonial audience, or whether it was intended to be of relevance to the metropolis as well.²⁷

We know more about the situation of stowaways because they were more likely to be mentioned in administrative correspondence or court proceedings. In the early eighteenth century, there were various cases of stowaways from Curaçao who had arrived in the United Provinces.

The issue of stowaways was clearly an enduring problem, and one case came before a local court in 1736. We know of this case thanks to the notes that Cornelius van Bynkershoek made in his Observationes tumultuariae. In this work, Bynkershoek took notes of the court cases that came before the Supreme Court of Holland and Zeeland (Hooge Raad van Holland en Zeeland), which was the highest court in the provinces of Holland and Zeeland. Normally, a case that came before this court originated in a local court, and was then appealed to either the Court of Holland (Hof van Holland) or the Court of Zeeland (Hof van Zeeland). After obtaining leave, it was possible to lodge an appeal with the Supreme Court of Holland and Zeeland. Although the ten judges did discuss the merits of cases with each other, the public at large only knew whether the appeal was allowed or rejected, as the judgments were not motivated. This also explains why Bynkershoek’s collection is so important, as he gives us some insight in the court’s reasoning.²⁹

A slave called Nicolaus (Bynkershoek uses fictional names in his Observationes tumultuariae, and calls the slave Pamphilus³⁰) fled from his Curaçaon master and arrived in Amsterdam in 1734. Seemingly, he had heard about the freedom principle of the United Provinces, as he asked for his freedom at a local Amsterdam court (“ad libertatem proclamat”). The local court agreed,and freed him. His master appealed the case to the Court of Holland. This court decided that Nicolaus remained a slave and had to return to Curaçao, referring to a precedent of October 29, 1734 in which it had made the same decision regarding a stowaway.

The slave’s lawyer referred to the example of the Great Council of Malines in order to have Nicolaus declared free. However, Bynkershoek’s court decided to reject the appeal. Bynkershoek’s notes indicate that two reasons swayed the judges. To dispose with the precedent of 1532, the judges held that this situation was different. The slave came from Curaçao, which belonged to the Dutch realm, and not from another kingdom, as was the case in 1532 (namely, from Portugal). In Curaçao, Roman law regulated slavery on the basis of the placaet of 13 October 1629. As a result, the court decided to apply Roman law and not domestic Dutch law in this case, referring to the title “De servus fugitivus” of the Corpus Iuris Civilis. Second, another motive was clearly present, as Bynkershoek mentioned that slaves were necessary to run the colonies. For that reason, slaves fleeing to Holland could not be allowed to become free upon their arrival.³¹

We currently know of no further cases, but in a 1776 report of the Staten van Holland (hereafter: States of Holland), we do find a statement that the courts of that province did not believe that stowaways became free upon arriving in Holland. They referred to precedents that had come before the various courts of Holland but did not give any specifics (“dat zulks ook in dier voegen een en andermaal by de Hoven van Justitie in deese Provincie verstaan was”).³²