1.2 Status Quaestionis

The innovations of this book can obviously only build upon the solid foundations of past scholarship. Let me thus say a word or two about the state of the research. Using Watson’s language, which “details or expressions of the law of slavery” have indeed already caught the attention of scholars in this field?

To keep the exercise manageable in scope, some exclusions must apply.

Even within this paired down exercise, a proliferation in studies is visible over the past decades. If the clear focus of the relationship between slavery and the law has tended to focus on the American side of the Transatlantic slave trade—with good reason, given the sheer numbers, Europe has come more to the fore in recent decades. Whilst the number of slaves on European soil in the Early Modern era was infinitely smaller, Europe did not stand separate from the evolutions in the New World. If anything, Atlantic history, as a separate sphere, has become a more popular strand of historical research, and historians of the transatlantic slave trade have certainly been seminal in this evolution.⁹ As a result, some excellent recent works, such as Michael Guasco’s Slaves and Englishmen: Human Bondage in the Early Atlantic World, Brett Rushfordt’s Bonds of Alliance: Indigenous and Atlantic Slaveries in New France and Kwame Nimako, Glenn Willemsen and Stephen Small’s The Dutch Atlantic: Slavery, Abolition and Emancipation incorporate both European and American aspects of slavery to a larger account than before.

French literature on the presence of enslaved persons on French soil dates back at least a century. Whilst the legal implications remained mostly in the background in these studies, Lucien Peytraud’s 1897 L’esclavage aux Antilles françaises avant 1789: d’après des documents inédits des archives coloniales, Jules Mathorez’ 1919 Les étrangers en France sous l’Ancien Régime and Shelby McCloy’s 1961 The Negro in France are but the three most extensive publications in this regard.

In more recent history, both the topics of Mediterranean slavery, as well as the presence of slaves on metropolitan French soil have been the subject of various monographs.

On the former topic, one could point to Robert C. Davis’ Christian Slaves, Muslim Masters in general, and to Gillian Weiss’ 2011 Captives and Corsairs: France and Slavery in the Early Modern Mediterranean in particular.

On the slave presence in France, the work of Sue Peabody and Pierre Boulle stands out in particular. Most importantly, Sue Peabody’s There Are No Slaves in France: The Political Culture of Race and Slavery in the Ancien Régime is a seminal work. Peabody’s work rests (primarily) upon a close reading of the slave cases that came before the Parisian Admiralty Court, as well as the legislative initiatives regarding the black presence in France. This can be supplemented by much of the work of Pierre Boulle, who has also written on legal aspects of the black presence in France but has equally well written more broadly on the black presence in France, such as in his 2007 Race et Esclavage dans la France de l’Ancien Régime. Most recently, the two have collaborated in the writing of a 2014 book, Le droit des noirs en France au temps de l’esclavage, containing many of the primary sources on the subject for France, as well as providing up-to-date summaries of the main episodes on the black presence in France.

Next to Peabody and Boulle (Peabody most recently also wrote a marvellous piece of micro-history on this topic, entitled Madeleine’s Children - Family, Freedom, Secrets, and Lies in France’s Indian Ocean Colonies), other authors have been prolific as well.

The country with the most abundant volume of material on the unfree presence on metropolitan soil is certainly England.

First, there is a rather abundant literature dealing specifically with the black presence in England, and which to a more or lesser degree also engages with the legal debates. James Walvin’s 1973 Black and White: The Negro and English Society, 1555–1945, Folarin Shyllon’s 1974 Black Slaves in Britain, and Peter Fryer’s 1984 Staying Power: The History of Black People in Britain are three of the best known examples here. A more recent example in this genre, drawing on an extensive database, is Kathleen Chater’s 2011 Untold Histories: Black People in England and Wales during the Period of the British Slave Trade, C. 1660–1807.

Likewise, the legal literature is vast. The great majority of attention has been paid to the case of Somerset v. Stewart, by far the most well-known case of an enslaved person on metropolitan soil. Whilst the case was the subject of popular discussion in the eighteenth and nineteenth century, the “re-evaluation” of the case’s importance can be said to have started with Edward Fiddes’ 1934 article Lord Mansfield and the Sommersett Case in Law Quarterly Review.

Whilst Somerset certainly continues to dominate the debate, the past two decades have also seen much work that went beyond Somerset. This work has ranged from assessments of slavery in England before (i.a. Travis Glasson’s article “Baptism doth not bestow Freedom”: Missionary Anglicanism, Slavery, and the Yorke-Talbot Opinion, 1701–30) and after (i.a. Ruth Paley’s article After Somerset: Mansfield, Slavery and the Law in England 1772–1830) Somerset’s case, attempts to put the English law on slavery in its imperial context (George van Cleve’s excellent article Somerset’s Case and Its Antecedents in Imperial Perspective, as well as his book A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic on the consequences of Somerset in the US particularly stand out), and evaluations of other actors’ involvement in the English law of slavery (for example, on Parliament, Ruth Paley’s article Parliament and Slavery, 1660–c. 1710). Whilst Scotland will not be treated extensively, I would point out that John W. Cairns and Iain Whyte, amongst others, are excellent authors treating these same issues for Scotland.

The same level of comprehensiveness does not yet exist on the black presence in the Low Countries, and the potential for research here has only recently been tapped. Reasons for this relative lack, in comparison with France and England, can probably be found both in the number of black people on Dutch soil (comparatively low, as we shall see), as well as linguistic reasons.

This is particularly the case for the Southern Netherlands, the territory of which more or less corresponds with current-day Belgium, where admittedly, the black presence in the eighteenth century must have been minimal. However, it must be noted that one of the greatest scholars of international law, Ernest Nys, in his little-known 1890 article L’esclavage noir devant les jurisconsultes et les cours de justice had already covered a lot of the field for the Southern Netherlands. The first half of the twentieth century also included some analysis of the sixteenth century slave presence in the then economically very important port of Antwerp (i.a. Jan Goris’ 1923 article Uit de Geschiedenis der vorming van het Antwerpsch stadsrecht: Slavernij te Antwerpen in de XVIde eeuw in the Bijdragen tot de geschiedenis). Somewhat surprisingly, the primary material to re-evaluate this topic has been left untouched by historians for at least the past 50 years.

There is more to be found on the Dutch Republic, current day Netherlands. Some books do an excellent job of covering the presence of foreigners on Dutch soil, and tangentially touch upon the legal aspects. In particular, I refer to Gert Oostindie’s and Emy Maduro’s two volume work In het land van de overheerser for Dutch speakers, as well as Mark Ponte’s recent work on the existence of a (very small) Afro-Atlantic community in seventeenth century Amsterdam. In the English language, Jonathan Schorsch’ chapter on Amsterdam in his Jews and Blacks in the Early Modern World and Dienke Hondius’ Blackness in Western Europe: Racial Patterns of Paternalism and Exclusion are instructive, recent examples.

Extensive treatment of the legal issues is scarcer to find. Of the older literature, especially Priester’s 1987 De Nederlandse houding ten aanzien van de slavenhandel en slavernij, 1596-1863: het gedrag van de slavenhandelaren van de Commercie Compagnie van Middelburg in de 18e eeuw, is useful, mostly so for Ideengeschichte and the role of the province of Zeeland. In more recent times, Karwan Fatah-Black (who writes on many aspects of Dutch colonial history) and Dienke Hondius have included aspects of legal analysis in their articles and books on the subject. Next to this, monographs that deal with other areas of the Dutch colonial realm also sometimes include interesting chapters or paragraph of relevance to the metropolitan situation concerning slavery (for example, Han Jordaan’s work on Curaçao, as well as the work by Karel Schoeman on the Dutch Cape Colony).

Many authors have attempted to make some comparative approaches between these case-studies. Often, these comparisons are shorter and more general¹⁰, though some broader treatments do exists.¹¹ All in all, extensive legal comparison from a pan-European perspective is lacking. The most noteworthy approach (although again not with an exclusively legal angle) was the 2011 special issue of the journal Slavery & Abolition on the freedom principle. This issue has consequently been published as the book Free Soil in the Atlantic World in 2014, edited by Sue Peabody and Keila Grinberg. As a very useful point d’entrée for comparative approaches to the freedom principle, Peabody and Grinberg’s article Free Soil: The Generation and Circulation of an Atlantic Legal Principle is indispensable. The other articles cover national experiences, but do not engage in extensive comparative work.

Given all this, I believe the relevance of this work to be threefold.

First, the book hopes to synthesise the wealth of available material on the application of the freedom principle by “judges, legislators and professors”, to quote the title of one of the late Professor Raoul Van Caenegem’s works, in the Early Modern Period. Most of the current literature focuses on one country, or only engages in a very limited comparative exercise, and many scholars tend to remain within their own legal tradition. Likewise, legal-historical aspects of the freedom principle are often not the main focus. In that sense, this work will hopefully be able to serve as a more extensive entry point for the legal-historical study of this topic, and provide bibliographical material on not only the English, but also the French- and Dutch-language literature.

Second, as said, the literature on the application of the freedom principle in the Low Countries by courts and legislators is relatively scarce. Both the legal ramifications of the early black presence in the Southern Netherlands, as well as the background to the eighteenth century legislation on the black presence in the United Provinces, are understudied. I have re-assessed the existing scholarship and expanded upon it. Equally, I make use of hitherto undiscussed archival material to appreciate the role of the Dutch States General on the issue of black slaves arriving in the United Provinces.

Finally, my comparison between the legal application of the freedom principle by courts and legislators in the various countries goes further than existing literature. I theorise as to why legislators decided to intervene (or not) in this matter and try to explain some of the national peculiarities of the freedom principle. In this regard, my work can serve as a useful avenue for further research, which is especially needed for the hitherto unexplored material on the Low Countries.

I am cognisant of the limits of this work. My focus on the “judges, legislators, and professors” is somewhat biased in favour of addressing the law in the books. Furthermore, the monograph takes more of a national and regional rather than a local perspective, which means that decisions of local authorities and courts are certainly not always extensively treated. My focus likewise means that I do not fully treat the “law in society” and the many informal regulations that enslavers created on the ground to keep the enslaved under their power. Given the very limited written records that the enslaved themselves have left behind, our knowledge of this will always be imperfect and very dependent on the different glimpses of their lives which we can extract from the records (e.g. notarial deeds, birth and marriage registers, etc.). At several times, I will make reference to this difference between the law in books and the law in society approach, but much research on the latter remains to be done in coming years.