Snak, Claas and Bastiaan’s Struggle for Freedom

In the Dutch Republic slavery was not permitted on its soil in Western Europe. Enslaved people obtained their freedom by setting foot on Dutch soil. In 1776, the scope of this free soil principle was limited by a statute of the States General. From this moment onwards only slaves who remained in the Republic for longer than six months would automatically become free. In the literature, it was hitherto assumed that with the establishment of this statute the first debates about the scope of the free soil principle were initiated. This article demonstrates that this assumption is false. Previously, two court cases from 1735 and 1736, between two enslaved men from Curaçao and their masters, had already given rise to discussion. During these court cases, lawyers and judges elaborately debated the boundaries of the free soil principle. Did every enslaved person automatically obtain their freedom, or was, for instance, the permission of the master required to travel to the Dutch Republic? The two court cases give insight into what contemporaries thought about the free soil principle, thus shedding new light on the States General’s statute of 1776.

van polanen of 4 May 1731 'to order warships not to admit slaves on board that are running away from their masters' in order to 'prevent all difficulties as much as possible '. 6 The free soil principle led to a conflicting situation. Contrary to the colonies in the West and East, slavery was not recognised on the Dutch Republic's soil in Europe. This contradiction was not peculiar to the Dutch. 7 Since the High Middle Ages slavery had fallen into disuse throughout most of Western Europe, with the exception of the Iberian Peninsula. Over the course of the eighteenth century the free soil principle increasingly led to court cases in which slaves took legal action against their masters, arguing that they were free because they had touched the 'free' soil. Particularly in France, England, and Scotland there are notable examples of these freedom cases. In 1738 the Admiralty Court in Paris granted an enslaved man, Jean Boucaux, his freedom, because his master, Bernard Verdelin, had employed him as a cook in his residence in Paris (Boucaux v. Verdelin). 8 The Court even ruled that Verdelin had to retroactively pay Boucaux's salary. Thereupon legislation was enacted that tried to limit the free soil principle. 9 Nevertheless, 154 French slaves obtained their freedom between 1730-1790. Irrespective of the new law, the Admiralty Court in Paris and the Parliament of Paris continued to uphold the free soil principle. 10 In England developments regarding the free soil principle culminated in the renowned freedom case Somerset v. Stewart (1772). 11 Herein Lord Mansfield denied Charles Stewart the right to transport his slave James Somerset against his will to Jamaica. Although legally Somerset did not obtain his freedom, the significance of his case was immense. A turning-point was reached. For the first time it was unequivocal that on English soil enslaved people were entitled to resist their master's orders. Six years later Scotland went even further. 12 In Knight v. Wedderburn the highest Scottish court, the article -artikel Court of Session, decided that all slaves were free once they entered Scotland.
The free soil principle applied to all.

For the Dutch Republic Bram Hoonhout, Karwan Fatah-Black, Han
Jordaan, and Dienke Hondius have most recently written about the free soil principle. 13 While Hondius gives more of a bird's-eye view of the free soil principle in the Netherlands from the sixteenth to the nineteenth century, the other authors predominantly focus on developments in the 1770s. These begin with two petitions to the States General in which several enslaved people, who had already visited the Dutch Republic, officially requested their freedom papers. 14 In both instances the States General replied that these formalities were not necessary. By setting foot on Dutch soil, the petitioners had become free automatically. The Society of Suriname demanded clarification. 15 How should these two resolutions be interpreted? Were they only granted for these two specific cases or did they represent a general rule that also applied to enslaved people in similar situations? The States General appointed a commission tasked with providing clarification. This resulted in the enactment of a statute on 23 May 1776 about 'the freedom of negro and other slaves that are brought or sent from the colonies of the nation to these lands'. 16 In here, the scope of the free soil principle was limited considerably.
Only slaves that stayed with their master on Dutch soil for more than six months automatically became free. Pursuant to article 5 a master even had the possibility to extend the term of six months. In the statute, the interests of Surinamese plantation owners evidently prevailed. For slaves it became more difficult, if not impossible, to invoke the free soil principle to their advantage.
The drafting process of the statute has led to the general assumption among historians that the scope of the free soil principle was determined van polanen during this period. 17 The two resolutions of the States General seem to trigger a new debate about the question under which circumstances a slave could successfully invoke the free soil principle. This article shows, however, that this assumption is false. The question about the scope of the free soil principle was answered earlier. It was not in the 1770s, but in the 1730s that the free soil principle was shaped for the first time.

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In two columns he noted, through key words, which arguments were raised by each party's counsel before the court, on which legal sources these arguments were based, and how parties replied to each other's position. Through these sources I examine under which circumstances, in the eyes of the judges, a slave could successively invoke the free soil principle. First, I will shortly set out how Snak, Claas and Bastiaan ended up in Amsterdam. There is, however, much more to say about their escape. Plenty of sources make it possible to get insight in questions like: how did enslaved people know about the free soil in the Dutch Republic, did Snak, Claas and Bastiaan get help with escaping, and is there something known about their motives? In a longer version of this article, which is accessible online, I elaborately wrote down the whole story of Snak, Claas and Bastiaan's escape. 20 Then, a chronological discussion of the court cases follows. In the conclusion, I re-evaluate the statute of 1776.
The two court cases shed a different light on the legislative choice that the States General made. The statute encroached deeper on the existing legal situation than historians previously considered.

Claas, Snak and Bastiaan's escape to Amsterdam
The story of Snak, Claas and Bastiaan began in 1733, two years before their joint escape. 21

Snak before the Aldermen's Court
The views of Roman-Dutch jurists such as the mentioned Grotius and Groenewegen van der Made who wrote that slavery was out of use were to the advantage of Snak and Claas. 22 In the Dutch Republic everyone was free.
Amsterdam customary law, in an important edition by the seventeenthcentury town secretary Gerard Rooseboom, had a separate provision in which the free soil principle was explicitly laid down. Chapter 39, which had been copied from Antwerp customary law 23 , states the following: van polanen 2. Item, all slaves, that come into or are brought within this City and her liberty, are free and beyond the control and authority of their Masters, and Mistresses, and in so far as their Masters and Mistresses want to keep them as slaves, and let [them] serve against their will, the same persons have power to summon their aforementioned Masters and Mistresses before the Court of this City, and let them be judicially declared free. 24 At first glance, the provision appears to be clear about the legal status of Snak and Claas. Not only does it confirm that slavery was out of use in Amsterdam, but pursuant to the second paragraph it also gave enslaved people the possibility to summon their masters before the court of the city to have their freedom judicially confirmed. A close reading of the text, however, reveals some ambiguities. Only slaves that 'come into or are brought within' Amsterdam are able to summon their masters before court. The precise meaning of these words is a matter of legal interpretation. 'Come' implies that it does not matter how a slave entered Amsterdam, while 'are brought' means that a slave has to be transported to the city by someone else. The legal question, then, concerns the precise relation between 'come' and 'are brought'.
After all, 'are brought' is included in the meaning of 'come'. If we suppose that 'are brought' has an independent meaning, then the question arises by whom the slave has to be brought to Amsterdam. It seems obvious that the master of a slave suffices and that someone like captain Van Lint does not. But on this point the text is silent. The provision, in short, raises multiple questions. It was not clear in advance that, by relying on Amsterdam customary law, Snak and Claas had to be released.

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It is clear that a fugitive slave commits theft of himself, and therefore that he is not entitled to either short-term acquisitive prescription (usucapio) nor longterm acquisitive prescription (praescriptio longi temporis), so that the escape of slaves shall not, for any reason whatsoever, result in loss to their masters. 25 The reasoning of Roman law is as follows. 26 When a slave runs away from their master, de iure they commit theft of themselves. Theft is not a valid acquisition of ownership. As a result, a slave can never acquire their freedom immediately after running away. However, acquisitive prescription (verkrijgende verjaring) may provide an escape route. Acquisitive prescription entails that a bona fide possessor acquires ownership after a specified time period. For a runaway slave, this could be relevant. As is shown, however, in the quote from the Codex of Justinian, Roman law blocked this escape route. November 1735 the aldermen decided in favour of the free soil principle: Snak was released and declared free. In his journal De Vrij Temminck made a short note of the secret discussions in chambers: The gentlemen, deliberating on this point, considering predominantly that this slave Snak had been here with his master and had lived here for half a year, and at that point had not committed theft of himself, were by a majority unburdened to decide this with an admonition. Pro Libertate. 42 The aldermen considered that Snak had already become free once he had arrived in the Dutch Republic with his former master Pot. Being sold again into slavery was therefore unjustified.
De Vrij Temminck's notes give the impression that in the eyes of the aldermen this outcome was abundantly clear. This becomes evident from the following note: 'Sautijn wanted to air this in judicio contradictorio'. 43 'In judicio contradictorio' was a term of procedural law. It meant that the case was dealt with in its entirety, that is to say: in such a way that both parties could respond to each other's arguments through written documents and an oral hearing with pleadings. 44 In Snak's case, this did not happen because his trial is best characterised as summary proceedings for preliminary relief (kort geding). Snak and Claas were seized on 18 October 1735. It was possible to raise objections to this. According to Amsterdam customary law, the person seizing another had to give a legitimate reason for the imprisonment, while the person being seized had to explain why imprisonment was unjustified. 45

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During these proceedings, the aldermen had already become convinced of the strength of Snak's claim to freedom. There was no need for a comprehensive (oral) treatment in longer proceedings, and so the aldermen passed judgement 'with an admonition'. It had never been permissible to imprison Snak and therefore he had to be released immediately.

Claas before the High Court of Holland, Zeeland and West-Friesland
At the High Court of Holland and Zeeland, Claas's case was dealt with urgently. Already on 11 April both parties appeared before two examining judges and on 20 June their advocates pleaded their cases. 61 On 3 July the judges of the High Court sat in chambers to form their judgement. 62 This discussion in chambers was strictly confidential and took place behind closed doors. Under no circumstances was it allowed to be made public. According to article 12 of the Instruction of the High Court a judge who broke this secrecy, was suspended after the first incident and removed from his position after the second. 63 Nevertheless, three sources, which were confidential at article -artikel the time, allow to reconstruct the discussions in chambers. First, there are the resolution books (resolutieboeken) in which the registrar (griffier) entered minutes of what a judge had said in chambers. 64 Second and third, the legal diaries (Observationes Tumultuariae) of two judges of the High Court Johan van Bleiswijk and president Cornelis van Bynkershoek have survived. 65 In these two private documents they wrote down, in Latin and sometimes in vernacular, the facts and the course of proceedings as well as the grounds on which the High Court had based its decision.
It was common practice for one judge to act as reporter. In this case, it was Adriaan de Grande. He had to inform the other judges about the facts of the case and the relevant legal sources. Thereafter, he gave judgement first.
One of the first texts that the judges discussed came from the Commentariorum de Iure Novissimo of the sixteenth-century Flemish jurist Petrus Gudelinus. 66 Discussing the free soil principle in the Low Countries, Gudelinus refers to a case from 1531 before the Great Council of Malines, the predecessor of the High Court as the supreme law court in Holland. An enslaved man who had been purchased in Spain by a Portuguese merchant ran away from his master.
When the merchant heard that his slave was dwelling somewhere in the Low Countries, he petitioned the president of the Great Council to arrest his slave.

The president refused:
It was answered in 1531 that the requests of the supplicant would never be approved because of the custom of freedom of persons that has been observed here for several centuries. 67 It looks like the slave of the Portuguese merchant acquired his freedom by fleeing to the Low Countries. The rest of Gudelinus' commentary, however, shows that things are not as simple. Legally the man remained a slave, but van polanen in the Low Countries his master was not entitled to arrest him. As long as he stayed in the Low Countries, he could appeal to the custom that slavery had fallen out of use and as a consequence the master's rights were suspended. But if the slave ever were to return to Spain, he could still be arrested by his master.
The underlying reason is that foreign legal concepts were only recognised as far as they existed within the own jurisdiction. A contemporary of Gudelinus, Paulus Christinaeus, confirms this interpretation: The same master Gudelinus, previously my colleague in the same Great Council, submitted that he believes that slaves who come from Spain to this place or France, strictly speaking do not acquire their freedom. For in Spain they can still be taken back into slavery, if they are later captured there, although as long as they are here, they can be defended in the liberty that is denied to them. 68 For the outcome in this case it was decisive that the slave had fled from a territory where slavery was permitted, to a territory where slavery was out of use. That is why the Portuguese merchant could not arrest his slave. article -artikel interpretation method. Bynkershoek gives another argument that may have been decisive in chambers: Finally, because these and other colonies inevitably require slaves, without whom the colonial affairs cannot proceed, they thought that it would have great consequences if slaves from the East or West Indies would conceal themselves in ships, like Pamphilus [Claas] had concealed himself, and turn up here to walk around freely. 74 This practical argument had already been put forward by reporter De Grande.
He concluded that 'the colonies in the West Indies cannot be cultivated without slaves, therefore one must not give slaves a reason to escape '. 75 Contrary to their colleagues in the Aldermen's Court, the judges of the High Court proved receptive to this practical consideration. It is reasonable to assume that it has substantially influenced them. After all, another interpretation of Amsterdam customary law was possible just as easily.
Now that Claas could not rely on the free soil principle, it was inevitable that the judges applied the rules of Roman law. This was also based on article 61 of a statute that the States General had enacted for the 'conquered and to be conquered places in the West Indies'. 76 It was decreed that the make his condition better with his crime). Our Republic is not an asylum for thieves, neither a lurking-place for stolen goods, and the right is maintained for everyone, citizen, foreigner, stranger, to claim their property and then their good is assigned to them. 77 The High Court gave their final judgement the same day as their secret deliberations in chambers. On 3 July 1736 Bynkershoek pronounced that the judges were 'not encumbered' with the decision of the Court of Holland. 78 Claas had to leave Amsterdam with the first ship that sailed back to Curaçao.

Conclusion: a revaluation of the States General's statute of 1776
Van Schagen v. Snak and Claas v. Heijer show under which circumstances a slave could successfully appeal to the free soil principle in the Dutch Republic. article -artikel he could rely on the free soil principle. Whilst not legally, factually he was free.
This case did not help Claas. Curaçao and the Dutch Republic both formed part of the realm of the States General as was proved by multiple statutes that the States had enacted. The judges of the High Court, therefore, decided unanimously that Claas had to return to Heijer.
The judges interpreted the free soil principle ingeniously. It mattered from where and in what way an enslaved person had ended up in the Dutch Republic. On the basis of legal and practical arguments they had come to this classification. There is, however, something that one has to keep in mind. As we have already seen, early modern judges did not publicly motivate their judgements. As a consequence most of the argumentation that we have seen important. Before the statute was enacted, it was evident to contemporaries that an enslaved person could rely on the free soil principle when they had their master's consent to travel to the Dutch Republic. If the States General wanted to change this, they had to pass new legislation. Only a new statute could alter the status quo. This insight leads to the conclusion that the States General consciously encroached upon the existing rights of slaves in the Dutch Republic in order to favour the slave owners in the colonies. The insertion of the six-month term and the possibility to extend this term worsened the position of enslaved people considerably. A slave was not immediately free when they touched 'free' soil, as was still the case in Van Schagen v. Snak and the two resolutions from the introduction. Hence the statute of 1776 ended a legal situation that previously had been obvious. Now the free soil principle was also curtailed for enslaved people who did have their master's permission to make the crossing.
Within the contemporary international context this decision of the States General is striking. The French, English and Scottish cases from the introduction show that surrounding countries were going in a different direction. There the situation of slaves was not undermined but was either upheld or improved. This had happened on the basis of a legal discourse similar to that in the Dutch Republic. Everywhere the same tension existed

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between, on the one hand, the free soil principle and, on the other hand, the property rights of plantation owners. In Somerset v. Stewart, moreover, the legal representatives of Somerset adduced Gudelinus's case. 82 Lord Mansfield's judgement even bears resemblance to the same kind of reasoning. After all, Mansfield did not legally release Somerset. He only decided that on English soil Stewart could not deport Somerset against his will. Besides, in France there was also new legislation enacted in which the free soil principle was limited. The Admiralty Court in Paris and the Parliament of Paris continued nevertheless to release enslaved people on French soil, notwithstanding the property rights of masters or the supposed consequences for the slave population in the colonies.
The Scottish case of Knight v. Wedderburn may be the best example that a different outcome on the basis of the same legal discourse would have been possible since Scotland was influenced by Roman-Dutch law. Yet, the majority of the Court of Session agreed with an earlier decision of a lower court that ruled 'that the state of slavery is not recognised by the laws of this kingdom and is inconsistent with the principles thereof and […] that the regulations in Jamaica concerning slaves do not extend to this kingdom'. 83 In conclusion, despite the similarities with neighbouring countries the States General of the Dutch Republic worsened the conditions of slaves on their own soil. In doing so, they stood alone.
Finally, how did the story of Claas end? It is not entirely clear. The High Court ordered that Claas had to return to Heijer with the first ship that sailed back to Curaçao. I have not been able to determine unequivocally if this really happened. Nevertheless, it seems obvious that it did. Heijer would have insisted that the High Court's decision was complied with. The result of the three's escape, however, is clear. For one of them the journey to Amsterdam became a disillusion, Claas returned into slavery. But for the other two a dream came true. Bastiaan escaped and Snak obtained his freedom. The powerful words of De Vrij Temminck applied to them: Pro Libertate.