The first 19 or 20 Africans who arrived in the colony of Virginia in 1619 were indentured servants—not enslaved people. This was not luck; instead, England’s Magna Carta of 1215, the General Charter of Emancipation of 1381, and England’s common law effectively banned slavery within the American colonies, and by each colonial charter, all colonial governments were required and were initially adhering to and applying the English rule of law—the Cartwright Case of 1569 which declared “the air of England too pure for slaves to breathe.”
The Kingdom of Great Britain fastened England’s common law and statute law to the American colonies, and under the common law tradition of jus soli and Parliament’s 1350 Act—English citizenship was extended to all people born in the American colonies, as it provides…“For those who are born in Parts beyond the Seas.” And all mixed-race children born within the American colonies were English citizens under the English rule of law. The English rule of law imputed knowledge of all laws to all persons within the jurisdiction and willful blindness or ignorance of the law was not a basis of exculpation.
All Children Born in Colonial America Recognized as Free
Significantly, under England’s common law and consistent with each colonial charter approved by England’s King, all children born in colonial America were recognized as being free-born Englishmen and under the protection of the British monarch—and no English person could be born into slavery, and no one in the Kingdom of Great Britain was above or below the English rule of law—the Elizabeth Key Freedom Case of 1655. And Virginia’s colonial assembly—the House of Burgesses—adhered and applied England’s common law tradition of partus sequitur patrem and legal principle of birthright English citizenship unto mixed-race people to Elizabeth Key in 1655. Key was born in the colony of Virginia to an African mother, who sued for her and her infant child’s freedom in colonial Virginia and prevailed.
Colonial slavery at birth or the colonial statute and racialized law of partus sequitur ventrem enacted after the Key decision in the 1660s did not change the British patrilineal descent tradition of partus sequitur patrem to matrilineal within colonial America for a fundamental reason—colonial legislatures were bicameral. None of the American colonial assemblies had the legislative power upon their own initiative to make slavery or hereditary slavery within the American colonies a lawful condition during British rule without the King’s formal approval as required by English law and each colonial charter.
A Nation Built on Uncontested, Illegal Claims
England’s King did not give formal approval to the enactment of any of the colonial slave or hereditary slave statutes and racialized laws, as required by each colonial charter. The Royal Assent by Commission Act of 1541 required the King’s formal approval to any alleged slave statutes or a law that purported to change the English patrilineal descent tradition to matrilineal within colonial America. The Sedition Act of 1661 made it a treasonable offense to promulgate a putative statute or law in the Kingdom without the King’s permission. These undisputable facts and the varied violations of the English rule of law by colonial assemblies made colonial America’s slave and hereditary slave statutes and racialized laws legal nullities and of no lawful effect.
Lawlessness, corruption of colonial government, and salutary neglect on the part of the British imperial government gave rise to hereditary slavery during the mid-seventeenth century in colonial America, but the British imperial government voided all inconsistent and repugnant colonial statutes and racialized laws with the American Colonies Act 1766, commonly referred to as the Declaratory Act of 1766.
The Declaratory Act of 1766 exerted parliamentary sovereignty over all American colonial assemblies and voided all colonial statutes and laws “in all cases whatsoever.” Colonial slave, hereditary slave statutes and racialized regulations “denied and questioned” and were both inconsistent and repugnant to the English rule of law and were not carved out exemptions to the Declaratory Act.
This Act of Parliament… recalibrated its relationship with the American colonies by nullifying inconsistent and repugnant colonial statutes, laws, resolutions, votes, orders, proceedings, and racialized regulations that denied or challenged “the power and authority of the parliament of Great Britain, to make laws and statutes,” and it restored colonial legislative and cultural affairs to status quo ante.
However, despite colonial slavery in all forms becoming illegal within colonial America in 1766, the practice of slavery continued… but in 1772—two hundred and fifty years ago—the high court of Great Britain ruled decisively in the landmark James Somerset v. Charles Stewart Case—slavery was “not allowed and approved by the laws of this Kingdom,” as it found “American Laws” purporting to create a condition of slavery to be ineffectual.
Historians interested in the Somerset Case who did not go back and consider Parliament’s Declaratory Act that voided all colonial slave statutes and racialized laws, along with all other statutes and laws in 1766 claims that the Somerset Case is distinguished from the Cartwright Case of 1569. However, the Somerset Case marked a pivotal moment in the annals of history, for it declared the ineffectualness of colonial America’s slave statutes and laws within the Kingdom of Great Britain.
William Murray, Lord Chief Justice Mansfield had referred the Somerset Case to the Twelve Judges—a procedure used during colonial times to address major points of English law. The twelve-judge tribunal sought to resolve the legal question of the effectualness of the slave statutes and racialized laws of the colonies of Virginia and Massachusetts and whether these “American Laws” legitimized the enslavement of a black colonial.
The Twelve Judges ruled in June 1772—the state of slavery was not lawfully effectuated by the colonial laws or statutes enacted in the colonies of Virginia or Massachusetts, and slavery could only exist by a “positive law.” Further, that slavery possessed no recognition in English law, having never been established in the common law or by statute. Moreover, in the absence of a “positive law,” slavery in the Kingdom could not exist and slavery could only be promulgated through “positive law,” which the British Parliament exclusively possessed.
The Somerset verdict portended the manumission of enslaved black colonials because Parliament’s Declaratory Act of 1766—voided all inconsistent and repugnant colonial statutes and racialized laws “for all purposes whatsoever.” All slave and hereditary slave statutes and racialized laws enacted by colonial assemblies within the American colonies became legal nullities in 1766 and this case reaffirmed parliamentary sovereignty throughout the Kingdom of Great Britain. Consequently, James Somerset and as many as 15,000 enslaved black people in England and Wales were set at liberty in June 1772.
Yet four years later, the fifty-six signatories of the Declaration of Independence declared their right to liberty from Great Britain while concomitantly denying liberty to 500,000 colonial-born blacks on the Fourth of July in 1776. Indeed, there was a disconnect between the principle of natural equality for white colonials and the extralegal system of race-based hereditary slavery.
The lawless practice of hereditary slavery continued in the aftermath of the Somerset decision due to fears of social chaos, destabilization of colonial America, and possible armed rebellion within America’s southern colonies were concerns held by the British imperial government and actualized by the appalling silence of white New England Northerners.
Within a year of the signing of the Declaration of Independence, Prince Hall, a leader of the free black community in Boston, would file a petition with the Massachusetts General Court—its legislative assembly on behalf of “A Great Number of Blacks detained in a State of Slavery in the Bowels of a free & Christian Country,” claiming that “every principle” of the American Revolution “Pleads Stronger than A thousand arguments” in favor of freedom for the enslaved. And yet white New England Northerners who enacted legislation that freed enslaved black Massachusetts based upon the Somerset verdict ignored Hall’s petition.
One hundred and seventy years ago, in 1852—the Ladies Anti-Slavery Society of Rochester invited Abolitionist Frederick Douglass to give a Fourth of July speech, by which he purposely delayed his appearance one day to deliver a historic message on the racial injustices and broken promises within the Declaration of Independence. His message—What To a Slave Is the Fourth of July? —conveyed the sentiments of many blacks, who had been wrongly denied their rights to liberty and equality pronounced by the Founding Generation.
Douglass, a former slave, praised the forefathers for values expressed in the Declaration—while stating that slaves toiling in America had no positive feelings towards the founders who immorally fastened slavery onto them in America. He professed… “this Fourth of July is yours, not mines; You may rejoice, I must mourn.” And essentially, Douglass’s Fourth of July speech criticized his audience’s boundless pride for a nation that claimed to value freedom and allegiance to the rule of law—while making the case that the forefathers’ actual intentions were cloaked in darkness and deceit.
The United States ignored the rule of law when it came to their black countrymen and more than anything, this nation is built on uncontested, illegal claims—legal inconsistencies, and myths that have so long have been presumed truth—they appear to be accurate and verifiable history. The Fourth of July is an annualized day for reckoning America’s core idea of equality of citizenship.