6.6 The Southern Netherlands: A Tradition Largely Untested
In contrast to France, England and the United Provinces, the Spanish and later Austrian Netherlands never really took part in the Atlantic slave trade. Antwerp faltered as a colonial market at the end of the sixteenth century to the benefit of Amsterdam, and it took well until the start of the Austrian period in the beginning of the eighteenth century before a Belgian port, namely Ostend, would become important again.
Despite the attempts of Ostend merchants to become a factor of importance in the colonial slave trade, this never materialised.86Given those preconditions, the black presence in the Southern Netherlands can only have been minimal. No scholar has assessed the numbers yet, and we only know that there were a few black people (whose personal status we do not know) to be found around Belgian ports in the eighteenth century.87 The life of coloured people in the Southern Netherlands is mostly shrouded in darkness, though their occasional appearance in paintings confirms that some must have been present on the soil of the country.88 If we were to have the opportunity to test whether the freedom principle remained valid here, such a case would have to be largely accidental.
Theoretically speaking, not much seemed to have changed in legal thought on the issue of the freedom principle. Whilst the quality of legal scholarship in the Southern Netherlands was generally unimpressive in the eighteenth century, two of the few famous scholars of that century, Georges de Ghewiet (1651–1745) and Dominique Sohet (1728–1811) argued in favour of a broad vision of the freedom principle.89
In his Institutions du droit Belge, de Ghewiet discussed the issue of personal servitude or slavery (confounding the two in a title “Des serfs de fait ou esclaves”, set against servitude réelle or, as he called them, serfs de coutume).
According to him, slavery or personal servitude had been abolished by an ordonnance of 1132 (a wrong assessment, as we already pointed out). From the moment a slave arrived in the Southern Netherlands, he became free (“Dès qu’un Esclave arive dans ces Pays, il devient eo ipso libre”). Given that de Ghewiet’s work was meant to instruct French jurists on the peculiarities of the areas conquered by Louis XIV in the War of Devolution (1667–1668), he had one caveat, namely that the French Edict of 1716 had been registered by the Parlement of Flanders.90We find much the same in Sohet’s work, which was an attempt to compare the laws of the Prince-Bishopric of Liège (itself part of the Holy Roman Empire) with the customs of the eastern provinces of the Southern Netherlands. In his Instituts de droit pour les pays, de Liège, de Luxembourg, Namur et autres, we find that thanks to “universal agreement” amongst Christians, slavery and personal servitude had ended around 1250. Whenever slaves from other countries would come to these provinces, they became free from the moment they entered.91
Through sheer chance, the authorities of the Austrian Netherlands were faced with the freedom principle at one moment in the eighteenth century.92 In 1733, one Juan Blanco, the captain of an English ship, arrived in the port of Ostend with his slave Antonio Bartholomeo de Lion (who came from Mexico). Blanco permitted his slave to attend a church service in the city. After the church service was over, an Italian soldier brought the slave to the drum major of the army regiment which was present in the city. The drum major was a black person, which gives the impression that Antonio’s origins probably lay in Africa as well. Whilst chatting, Juan Blanco arrived, and he hit his slave several times with a stick to get him back aboard the ship. At that point, the slave decided to flee. Maybe the drum major had told him that slaves became free upon arrival in the Southern Netherlands? Anyhow, his master found out and had Antonio thrown in prison.
The slave then petitioned the local nobleman François-Dominique Vilain de Gand (known as the Comte de Gand), the governor of Ostend, for his freedom. de Gand must have felt unsure how to proceed, as he sent a letter to Maria-Elisabeth of Austria, the governor of the Austrian Netherlands between 1725 and 1741. She then asked the Geheime Raad, one of her central advisory organs, for guidance.93In its advice, the Geheime Raad started by noting that, according to popular opinion (“la commune opinion et même l’opinion vulgaire passĂ© en loi tacite”), slaves coming to the Southern Netherlands became free upon arrival. It did not consider this to be decisive and wanted to back this up by references to the most eminent jurists of France, the United Provinces and the Austrian Netherlands. A plethora of scholars was mentioned. From France, Jean Bodin, Antoine Mornac (1554–1619), AndrĂ© Du Chesne (1584–1640), one Bouchet, Bernard Automne (1574–1666) and a certain Carolus were all referred to.94 From the Dutch Republic, Groenewegen van der Made and Arnold Vinnius were quoted. Finally, Zypaeus was mentioned as well (including the references he made). To back this all up, the case that was discussed by the Great Council of Malines in 1532 was referred to as a precedent. Finally, the customs of Antwerp were mentioned. The council considered this final element to be the most decisive. They referred to the period when Antwerp had flourished, when it was an important city in international commerce. The council was convinced that Antwerp’s freedom provision could only have been moulded by cases concerning slaves that must have happened in the city’s glorious past, and in which the slave received his freedom from the municipal authorities.95
These arguments seem to have swayed the governor, as she concurred that Antonio Bartholomeo de Lion was held to be free as from the moment he had entered the city of Ostend, following the laws and customs of the Southern Netherlands (“est à rĂ©puter pour une personne de libre condition dès son entrĂ©e dans la ville d’Ostende, suivant les lois et usages des États de Sa MajestĂ© dans les provinces des Pays-Bas de son obĂ©issance”).
This ruling is scarcely surprising. In a society which was excluded from the spoils of the Atlantic slave trade, there were no interest groups striving for a relaxation of the freedom principle. Lacking this factor, giving freedom to those few slaves asking for it in the Southern Netherlands must have been evident.96As an interesting anecdote, Belgium also has a codification of the freedom principle. In 1794, French troops occupied the Southern Netherlands (a second time) after having defeated the First Coalition in the Battle of Fleurus. At first, the French occupiers decided to let the region keep its existing laws and customs. However, the Southern Netherlands were annexed on 1 October 1795, and French legislation was to replace the existing one over time. For French legislation that was enacted after 1789 but before the annexation, a transition period of one and a half year was to be respected before it became applicable in this region. The French eventually decided to speed up this process. The French Minister of Justice Philippe-Antoine Merlin de Douai had to make an état général of all the French revolutionary laws which were not yet published in the conquered territories, but which had to be applied there.97 The so-called Code Merlin was ready on January 26, 1797, and in it, we find the “Loi portant que tout homme est libre en France” of 28 September 1791. That is not to say that the French consciously thought this over, as if anything, the period in which the French decided how and when to transplant the revolutionary era legislation to its new territories, was known for its legal uncertainty, both in the promulgation and application of laws.98 Be that as it may, the French codification of the freedom principle was thus transplanted to the Southern Netherlands, and has since formed part of its legislation.99