7.2 The Legal Origins of the Freedom Principle

Let us first look at the origins of the freedom principle. Did each and every country have, in law, a principle which held that slaves became free as soon as they crossed into their territory by the middle of the seventeenth century, or not?

As a prerequisite for such a principle, slavery would normally first have to be precluded in domestic law.¹ In this regards, although neither of them formally abrogated slavery, France, England and the Low Countries are broadly similar.

Although the great majority of the population in each of these countries could thus count themselves as being personally free by 1650, serfdom nor slavery was formally abolished in the Early Modern Period. Mainly in France do we find the mistaken idea that slavery had been abolished by royal legislation, because of the fact that Louis X’s 1315 ordonnance was being misinterpreted by the likes of Bodin, centuries after the law itself was made.²

However, slavery was nowhere part of the domestic laws, and it is clear that it was not considered to be acceptable for the domestic population anymore.

It is difficult to see how the galleys fit into this picture. Condemnations to the galleys could be seen as exceptions to disallowing slavery for the domestic population, but the French did not consider their forçats to be in exactly the same state as Turkish slaves. Likewise, whilst the English talked much about galley slavery, not much came of it in reality, and it was even less of an issue in the United Provinces.

In any case, what is clear is that none of the countries under consideration still recognised slavery as part of their domestic legal order and that the only kind of unfreedom recognised in any of them was serfdom or villeinage, which had nearly disappeared itself by the middle of the seventeenth century.

This raises the question whether slaves who came to one of these countries from the outside also became free upon their arrival. In essence, this is a question of private international law. In the fifteenth and sixteenth century, this issue would mainly arise when slaves from Spain and Portugal, where slavery was allowed by domestic laws and where black slaves were to be found across the country, came to England, France or the Low Countries. Did these countries recognise a status which was conferred by Spanish or Portuguese law? Here, things do seem to differ a bit.

In France and the Low Countries, we found a strong freedom tradition. The origins seem eerily similar, as both countries had strong cities with municipal charters. In the sixteenth century, the provisions of such charters became national principles of law, which could be applied to free slaves rather than serfs, the original target of such provisions.

In the case of France, municipal charters containing some form of freedom principle were especially important for those cities which had most contacts with Spanish territories.

For the Low Countries, there was also an evolution from a municipal to a national freedom principle. Just like France, it had cities with municipal freedom provisions. Unlike France, the dichotomy between cities that did not recognise slavery on the one hand, and Iberians holding slaves on the other hand, only came to the fore in the sixteenth century. This was due to Antwerp’s role in international commerce. It is in this context that we find governor Mary’s decision not to return the Portuguese ambassador’s slave. Mary’s decision in favour of liberty did not seem to have been aroused by anti-Portuguese sentiment, but probably had more to do with her keeping the domestic context in mind.

At the same time, both France and the United Provinces (upon its independence in the latter quarter of the sixteenth century) were not involved in the colonial slave trade in the sixteenth century, so the idea of the freedom principle cannot have been seen as very problematic from the ruler’s perspective. The Iberian powers were the opponents of the French and Dutch in the later sixteenth century, and the idea of the “Black legend” was present in both countries.³

This does fail to explain why the idea also spread in the Southern (Spanish) Netherlands, where the Spaniards had more of an interest in guarding property rights. It might have been that the freedom principle did not matter a great deal to the Spanish rulers of this region. The merchants holding slaves in Antwerp were primarily Portuguese, and the precedent of Malines predates the Spanish-Portuguese Union of the Crowns in 1580.

To continue, in both France and the Low Countries, the freedom principle was not to be found in central legislation.⁵ We can find expressions of the idea in court cases, such as the 1571 case that was discussed by the Parlement of Guyenne, or the Great Council of Malines’ advice of 1532. Subsequently, the idea was picked up by scholars in both countries, as a web of cross-references between such scholars quickly spread, even crossing state boundaries.

Interestingly, whilst we find “blanket” freedom principle enunciations in legal tracts of both countries, the freedom principle was sometimes qualified in one way or another. In the case of France, this was often done by positing a link between baptism and freedom. In the Low Countries, we sometimes find the requirement for a slave to petition the authorities himself in order to receive his freedom. One reason to explain this might have been that the French writers expounding on the freedom principle were making use of fifteenth century Italian works which made a link between baptism and slavery, as Nys suggested.⁶ Another reason, which I would suggest, could be that scholars were taking the particularities of their region into account. Whereas French persons were sometimes enslaved by Barbary pirates, the inverse held true as well, the French likewise capturing Barbary Muslims in the Mediterranean. A religious exception to the freedom principle, to explain for the presence of Muslim slaves, makes sense then. In the Low Countries, the “Muslim factor” was less relevant due to geographical reasons. If scholars wanted to expound on the freedom principle, they must have come across the provisions of the municipal laws of Antwerp, the most important city of the Low Countries in the sixteenth century.

I am more reserved to say that, legally speaking, England also had the same freedom tradition as part of its legal system. Much obviously depends on one’s interpretation of Cartwright’s case, and the extent to which it was known to contemporaries. Personally, I am rather doubtful about its value. As noted, the case was only mentioned for the first time in Somerset v. Stewart, more than 200 years after it had happened (discounting the seemingly little known reference by John Cook). Thus, if it really happened in the first place, it was certainly not well-known by contemporaries. Second, it could be explained in several ways. Originally, it was even understood as a limitation on the means of punishment, rather than as a recognition of the freedom principle. Finally, it is a bit unclear what exactly is meant with “England was too pure an Air for Slaves to breath in”. The first time we find the enunciation of “As soon as a slave sets foot on English soil, he is free” in a common law judgment, is only in 1705.⁷

At the same time, statutory law (as elsewhere) was silent on the issue. Doctrine does show some discussion regarding the situation of slaves coming to England, but what we find is quite limited. Lord Coke and Matthew Hale did not refer to the freedom principle in their works on the English common law. Before the second half of the seventeenth century, we thus have to revert to William Harrison’s statement. However, he was not a lawyer, and many scholars considered his statement to be overblown. It is only in the second half of the seventeenth century that we find some enunciations of the English freedom principle, and two of those scholars might have been influenced by civilian thinking through their legal education.

I do need to qualify this statement in one respect. England might not have had the same popular maxims as the continent, but that does not mean that, viewed from the point of private international law, slavery would have been permitted to exist in England. Rather, the issue remained more of an uncertainty. That did not deter Somerset’s legal counsel, who were craftily able to construct the idea of a freedom tradition in England, even though, in law, the basis of the freedom principle was less secure than in France or the Low Countries. How do we explain this difference?

In my opinion, the difference is not so much caused by differences in the approach that courts would take when faced with Iberian slaves, but rather has to do with geography and coincidence. The fact that French and Dutch courts had a chance to pronounce themselves on the status of slaves coming to their jurisdiction, was because there were Iberian slaves to be found in the first place. France’s border with Spain guaranteed a continued trickle of Spanish slaves crossing the border, and Antwerp’s early role in the colonial trade meant there was a Lusitanian merchant presence.

The English attitude towards the Iberian powers had soured by the end of the sixteenth century, as England was amongst those countries refuting Iberian claims to Atlantic territory, and in this they were no different than France or the United Provinces.⁸ But the chance of Iberian slaves coming to England must have been relatively small, and without slaves, there could be no legal judgment, and little doctrinal discussion.⁹ The first time English courts had to bother themselves with black slaves in England was at the end of the seventeenth century. At that moment, English claimants were involved, and their country was already well involved in the Atlantic slave trade.

This proposition is not meant to be revolutionary. English judges might well have come to the conclusion that Spanish slaves became free if they touched English soil. From a strict legal perspective however, barring English judgments, the freedom principle was better grounded in French and Dutch rulings and scholarly writing, whereas it was less so in England by the second half of the seventeenth century.¹⁰