Abstract
This chapter takes a comparative approach to the freedom principles. It discusses the various country experiences and compares them to discern similarities and differences in the origins, application and evolution of the freedom principle. I start by comparing the origins of the freedom principle, contending that the principle had stronger grounding in the Low Countries and France than it had in England. Second, I compare the evolution of the freedom principle during the heyday of the Atlantic slave trade. I discuss and try to explain some of the most striking differences and similarities across the different jurisdictions. Finally, I also make some remarks on the limits of the strictly legal comparison by evoking the concept of law in action.
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Notes
- 1.
I use the term “normally”, given that we noted how Spanish American colonies, which acknowledged slavery, sometimes freed slaves from Dutch colonies coming to their territory. That, of course, has primarily to do with the weakening of an imperial opponent, and not with the impossibility of slavery in Spanish America.
- 2.
George de Ghewiet also believed slavery to have been abolished in the Southern Netherlands by a misinterpreted ordonnance of 1232.
- 3.
- 4.
Israel (1995), pp. 171–172, 242, 262–263.
- 5.
One has to take into account that it is primarily with our current mind-set that custom is perceived as a less important source of law. In the sixteenth century, custom was accorded a high status by many scholars Kelly (1992), pp. 184–186.
- 6.
Nys (1890), pp. 62–63.
- 7.
Smith v. Brown and Cooper (1705), 2 Salkeld 666. As I mentioned, even in that case, I believe that Holt’s statement was not as broadly meant as one would presume. The case itself did not come to a final conclusion either.
- 8.
Neff (2014), pp. 126–135.
- 9.
In fact, the only case I know of a foreigner claiming his runaway slave in England dates from 1259. In this case, an Italian knight (Roger de Lynton) asked for a royal order to assist in the search of his Ethiopian runaway slave Bartholomew. Permission was granted by the king. We can only guess whether such a case would have had the same outcome in the sixteenth century. It does show that in the 13th century, notwithstanding that slavery had disappeared from England, a status acquired under foreign law was respected Bush (1996), pp. 615–620. The relative neglect of English writers on questions of private international law related to a personal status conferred by the laws of another country is also discussed in the work of the pro-slavery writer Thomas Cobb (1823–1862). See Cobb (1858), pp. 146–147, 156. Cobb likewise linked this neglect to geography, as Britain was more secluded from foreigners, simply due to its island location.
- 10.
Articles of Léon Vignols on the French freedom principle led me to the Histoire abrégée des traités de paix, entre les puissances de l'Europe, depuis la paix de Westphalie of the French diplomats Christoph-Guillaume Koch (1737–1813) and Frédéric Schoell (1766–1833). This was an authoritative collection of peace treaties between European powers. Curiously, when the treaties on the abolishment of the slave trade are discussed, Schoell also confirms this view. He notes that whereas the French had “always” had a maxim confirming that slaves became free upon touching the soil of France, he held that this was only adopted in England after Somerset’s case. I do disagree on the breath of his claims regarding Somerset, but it does show that even this contemporary writer noted the difference between France and England (although the counter-argument would be that there might have been a flavour of French chauvinism in his pronouncement) Koch and Schöll (1817), 178.
- 11.
Boulle and Peabody (2014), pp. 29–31; Rapport op de Missive van Gouverneur en Raaden van Suriname, concerneerende de vryheid der Slaaven die in het Vaderland zyn geweest, 19 juli 1775, 2; Recueil des ordonnances des Pays-Bas autrichiens. 3ième série, IV, 503–505.
- 12.
Paley (2010).
- 13.
His account was mainly written in the context of legal restraints placed upon black entry (done in France by the Police des Noirs, but never done in England). In more recent work, Drescher also made some other comparative remarks between the French, Dutch and English approach to slaves arriving in the metropolis Drescher (2009), pp. 94–102.
- 14.
- 15.
Peabody (1996), p. 13.
- 16.
- 17.
Of course, there were virtually no English villeins left, so the domestic effect of such a ruling was limited.
- 18.
The idea thus being that only (white) Englishmen could have ever been villeins, but that no new villeins could now be created out of the black slaves in England Rabin (2014).
- 19.
The best example is Hargrave’s memorial for Somerset, which attempts to show the distinction between slavery and villeinage in no less than 22 pages Hargrave (1772), pp. 25–47.
- 20.
For example, see de Pitaval (1750), 349–351.
- 21.
As the Admiralty of France routinely freed slaves, the procureur du Roi did not even bother to make elaborate statements in most of the cases. He simply sided with the slave’s lawyer and asserted that “Je n’empêche pour le Roi les conclusions du suppliant être adjugées” Boulle and Peabody (2014), pp. 79–81.
- 22.
Verdelin’s lawyer even tried to assert that the Code Noir could be used to justify the exception.
- 23.
Bosschaert’s report did mention that, in cases not involving stowaways, the courts could be asked to send a slave back to the colonies as well. Rapport op de Missive van Gouverneur en Raaden van Suriname, concerneerende de vryheid der Slaaven die in het Vaderland zyn geweest, 19 juli 1775, 4.
- 24.
Such decisions could of course be said to have had socio-political consequences for the colonies. If slaves knew that coming to France might render them free, one could expect that more slaves would try to reach France. This problem could have been foreclosed by the stowaway provisions in the French Edict of 1716, but the Parisian refusal to register the law in the first place barred this.
- 25.
Van Cleve (2006).
- 26.
I wish to thank Professor Sue Peabody for some of her very useful suggestions concerning these differences. Private correspondence with Professor Sue Peabody, 27/04/2017.
- 27.
On the fact that the opinion was well known in the legal community, see Glasson (2010).
- 28.
Wise (2006), pp. 24, 46.
- 29.
As mentioned before this humanitarian motive would be a fruitful avenue for further research.
- 30.
For France, see Peabody (1996), pp. 88–105.
- 31.
On private violence of masters, see for example Cairns (2013), pp. 168–169.
- 32.
For a discussion on the origins of the principle, next to the work of Ernest Nys, see Brion Davis (1966), pp. 98–106.
- 33.
For example, De Ghewiet in France or Van der Linden in the United Provinces took note of the exceptions created by their governments.
- 34.
On all of these remarks regarding the role of central legislation in the Ancien Régime, see Martyn (2014).
- 35.
Drescher (1989).
- 36.
Koufinkana (2008), pp. 47–48.
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Batselé, F. (2020). A Legal Comparison of the Freedom Principle—Similarities and Differences. In: Liberty, Slavery and the Law in Early Modern Western Europe. Studies in the History of Law and Justice, vol 17. Springer, Cham. https://doi.org/10.1007/978-3-030-36855-5_7
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