Some remarks on slavery and legal history
The celebrated movie “12 years a slave” features the theme of slavery. How was slavery upheld in the law? In this blog some European cases concerning slavery will be discussed.
Last week, “12 Years a Slave” won an Oscar for best picture and several other Oscars besides. The movie tells the true story of Solomon Northup, a free black man from New York who was abducted and then sold into slavery. After twelve years of hard labour on plantations in Louisiana, Northup eventually regained his freedom.
The movie is set in the period prior to the American Civil War and deals with American slavery. But Europe also has a chequered past. I am not only referring to colonial slavery, or to the Greeks and Romans and their slaves, but to other European peoples in later periods as well.
The Spanish and Portuguese owned ‘black’ slaves in continental Europe in 15th and 16th century. These slaves were taken captive in the continuous wars between the northern Mediterranean Christian states and the southern Mediterranean Muslim states. It was legal to own ‘infidels’ as slaves, in a practice that was mirrored by the Muslims with their Christian captives. The enslavement of captives served as a convenient ploy, since a subsequent conversion to Islam or Christianity would bring no automatic change in personal status.
Even so, slavery was not accepted in the Low Countries by the 16th century, regardless of religion, and slaves who entered the territories of the current Netherlands – or Belgium – became free immediately. The Great Council of Mechelen expressly decided so in a case which is reported by the Leuven professor Petrus Gudelinus (Pierre Goudelin, 1550-1619). In book 1, chapter 4 of his Commentariorum de iure novissimo libri sex (posthumously published in 1620) he describes the case of a Spanish merchant (an institor) whose slave ran away, while they were on business in the Low Countries. The owner of the fugitive slave requested the Council of Mechelen to order its magistrates to arrest the slave and return him to his rightful owner. This request was not granted, because slavery (servitus personarum) was not recognized as a lawful institution in the Low Countries. According to Gudelinus the slave immediately became free de iure, even against the will of the owner (invito domino), when he entered a territory where slavery was not accepted.
Roughly two hundred years later (in 1736), a similar case lay before the Supreme Court of Holland and Zeeland (see Van Bynkershoek, Observationes Tumultuariae, nr. 2966). This time a slave named Claes had escaped from his owner Paulina Meyer in Curacao by hiding on a ship. The fugitive slave eventually ended up in Amsterdam, where he was seized by the Amsterdam authorities. Apparently the slave was aware of the fact that slavery was not accepted in Holland, because he argued in court that he was free (proclamat ad libertatem). He, or rather his pro Deo legal council, explicitly referred to the precedent set by the Great Council of Mechelen. Unfortunately for the runaway slave, the Supreme Court did not go along with this reasoning. It held – among other things – that the slave was a thief of himself (fur sui ipsius) and stolen property (res furtiva) that could be vindicated by its owner.
The Supreme Court reached its conclusion by applying Roman-Dutch law. But in a revealing statement Van Bynkershoek mentions another motive for withholding freedom. Slaves are necessary to run the colonies, so he says (coloniae necessario indigent servis, sine quibus res coloniarum expediri non possunt), and it would simply not be expedient if slaves could set themselves free by hiding on ships and sailing to countries where they would be free.
The Dutch Republic has a reputation for tolerance and (religious) freedom. It may have been a promised land to some, a praesidium libertatis even, but certainly not to runaway slaves. Not long after the president of the Holland and Zeeland Supreme Court ruled against Claes, no less a lawyer than the Lord Chief Justice of the King’s Bench, Lord Mansfield, ruled against the existence of chattel slavery in England in the landmark Somersett’s Case of 1772, leading to the immediate release of over 10,000 slaves. As a colonial superpower, the English interest lay no different than the Dutch. But as Mansfield put it, “whatever inconveniences may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged”. After an enlightened early start, the Low Countries were falling behind the times.