1.1 Research Question and Research Goals
My research focuses on the following question: how did the “freedom principle” develop in the Dutch, French and English legal order in the Early Modern Period? The main topic is thus a descriptive one, although I will also offer a legal comparison in the final chapter, on the basis of the conclusions derived from the countries that were researched.1 To better indicate the scope of the undertaking, let us first divide the central question in several constituent parts.
First, what do I mean by the “legal order”? The aforementioned “freedom principle” has often been linked to local and popular traditions, but this popular notion will not be the main scope of my research. Rather, I am interested how the law dealt with this issue. Did courts, legislators and scholars believe that slaves became free upon arrival in Nantes, Amsterdam or London? Of course, laws are primarily made when there is a perceived problem that needs to be addressed, and courts mainly come into play in cases of conflict. To take this into account, historiography and legal-historical research that focuses on some of the other archival records associated with enslaved records (e.g. different forms of administrative records such as birth and marriage records, or notarial deeds), next to the by now rather extensive historical literature on this topic, can help us to fill the gaps that a law, case and doctrine focused approach leaves.
Second, why the Early Modern Period? There are two reasons. One is that the origins of nationwide enunciations of the freedom principle have been traced back to at least the sixteenth century.2 A second reason is that this was the era during which France, England and the United Provinces became actively engaged in the Atlantic slave trade. For each of these countries, we know that colonial proprietors often wanted to take slaves with them to their respective metropolises.
This offers us the possibility of seeing whether and how the law dealt with this crossing of legal boundaries. Moreover, for our purposes, the focus will be the period between the first enunciations of national freedom principle traditions in the sixteenth century, and the Age of Revolutions around 1800. Where useful, I will mention, albeit in brief, some material that stretches to the official abolition of slavery in the respective countries.3Third, why France, England and the United Provinces? Several reasons compelled me to choose these countries.4 First, all three were actively involved in the Atlantic slave trade. Some literature has already shown the tensions between this freedom principle tradition on the one hand, and the presence of slaves on the other hand for these countries. Second, the constraints of time and writing space also necessitated a choice, and as a result, some countries with an “Atlantic connection” such as Scotland will not be discussed.5 Third, partially due to linguistic reasons (e.g. the Nordic countries), and partially due to some regions’ very limited involvement in the Atlantic slave trade (e.g. the German speaking realm), the German and Nordic region are omitted as well.6 Fourth, Portugal and Spain will also not be discussed, as the idea of the “freedom principle” simply did not exist there in most of the Early Modern Era, and only came up in the eighteenth and nineteenth century.7Finally, the United States is also omitted, with the exception of those aspects that are relevant to the British domestic response to slavery. The literature on the American experience with slavery from independence to the end of the Civil War is incredibly extensive.8
To answer the central question, I have divided the monograph into four main parts, one for each major issue (next to this introductory chapter, as well as a short concluding chapter).
In the first part, I provide the necessary background information for this study.
First, I look at the legal definition of slavery as it has been fleshed out by twentieth century international law, and assess its relevance for the early modern era. Second, I examine the situation in Europe until the end of the Middle Ages (ca. 1500) both from a theoretical and a practical point of view. I ask if and how slavery as an institution was legitimised in law by European scholars. At the same time, I will also briefly assess whether slavery still existed “on the ground” in the countries discussed by the end of the fifteenth century. Third, we take a brief look at the situation at the other side of the Atlantic for the period between the end of the fifteenth century and the Age of Revolutions. How was slavery legally justified during the Atlantic slave trade from the point of view of legal doctrine? Likewise, if we wish to understand what the status of slaves coming to Europe was in the metropolis, we need to know which laws governed them in the colonies.In the second part, I discuss whether the freedom principle had become part of the legal systems of England, France and the Low Countries by the mid-seventeenth century. Basically, this means that we have to ask ourselves whether the domestic laws of England, France, and the United Provinces still recognised slavery, as well as how the legal order of these countries reacted when faced with slaves coming from other countries.
In the third part, I investigate whether, and if so how, the domestic legal order’s approach changed during the heyday of the Atlantic slave trade, which I broadly define as the period between 1650 and 1800. During this period, especially the latter part of the eighteenth century, slaves tended to show up more numerously in the metropolis through a variety of means (chiefly masters taking them with them during visits to the motherland, or stowaway slaves appearing when the ship in which they had hidden themselves appeared in a European port). We have to ask whether the law accommodated or opposed this.
Given the amount of material, this part is divided in three chapters, one for each country (the United Provinces and the Southern Netherlands are dealt with together).Finally, in the fourth part, I hope to set out some of the similarities and differences in the legal application of the freedom principle. I aim to compare the legal application of the “freedom principle” between England, France and the Low Countries in the following ways. First, was the freedom principle part of the domestic legal order of these countries by the middle of the seventeenth century? If so, in which source of law could it be found, and how did this come to be? Second, did anything change during the time of the Atlantic slave trade? How did legislators react to this issue in the metropolis, and how did courts deal with it? Also, do these sources of law tell us the “whole story”, or did the situation on the ground diverge? Are there any other notable similarities and difference between the discussed countries?