Mangling the Declaration
Frederick Douglass observed that there are “noble deeds which can be gained from the past,” such as Parliament’s Declaratory Act of 1766 and the British imperial government’s Phillipsburg Proclamation, which explicitly liberated all black individuals suffering as slaves in the American colonies before the end of the American Revolution.
Commander-in-Chief General Henry Clinton issued the Phillipsburg Proclamation on June 30, 1779, an iteration of the British imperial government’s Southern Strategy initiated by Dunmore’s November 7, 1775 Proclamation. The main rationale behind Clinton’s Proclamation was to stimulate mass desertion by encouraging enslaved black colonials to come over to the British and pursue “any occupation which he shall think proper.” The offer applied to males and females, including their children, and it was estimated that 100,000 enslaved black individuals deserted to the British.
Clinton was positive that an explicit liberation of all enslaved blacks living in colonial America would turn the lagging war around, so all conditions were explicitly withdrawn. If successful and if countless enslaved black colonials fled from their masters, Clinton knew that it would strike a solid blow at the plantation economy and force southern slave masters to use their men for guarding slaves—instead of fighting them.
Clinton’s Phillipsburg Proclamation aligned with the Crown’s duty to protect all subjects under the English Bill of Rights of 1689 and each colonial charter. The Declaratory Act of 1766 abolished all colonial slave statutes and hereditary slave laws “for all purposes whatsoever,” as they denied or questioned Parliament’s supreme legislative authority within the Kingdom and as slavery in the Kingdom was declared unconstitutional by the Twelve Judges panel in the Somerset decision in 1772, the legal status and liberty rights of all enslaved black colonials living in colonial America were lawfully restored before the Declaration of Independence in July 1776 under English law.
Further, colonial slavery was a criminal scheme since England’s monarch did not approve any of the colonial slave statutes or hereditary slave laws. They were enacted solely by the colonial assemblies, the lower Houses of the colonial legislature during the 17th century, and they had no such legislative power or authority.
These slave statutes and hereditary slave laws violated the colonial charter as the legislature was bicameral, and they were void ab initio. Therefore, enslaved black individuals did not need to escape captivity or put themselves in mortal jeopardy to claim a liberty right already restored and provided for under the Magna Carta of 1215 and the English Bill of Rights of 1689.
In his 1774 “Summary View of the Rights of British America,” Thomas Jefferson wrote:
“By one Act they have suspended powers of American legislature and by another have declared they may legislate for us themselves in all cases whatsoever. These two acts alone form a basis broad enough whereon to erect despotism of unlimited extent.”
Jefferson criticized the British Parliament’s actions in this document, explicitly highlighting the Declaratory Act, which he alleged was unconstitutionally overreaching and the Intolerable Acts, which suspended the powers of colonial assemblies, claiming that they undermined the American colonies’ autonomy and legislative power.
However, the English constitution established parliamentary sovereignty, which Parliament exercised by legislatively abolishing and repealing all colonial slave statutes and hereditary slave laws within the American colonies since they denied or questioned its supreme legislative authority throughout the Kingdom in 1766. Further, in the Declaration of Independence, the Founding Fathers accused the British imperial government of unconstitutional overreach and, without repudiating Anglo-Saxon jurisprudence and English law—criticized King George III as being unfit to rule because he “abolished our most valuable laws and altered fundamentally the Forms of our Governments.”
Doubtlessly, the decision of the U.S. Congress to retain its connection to Anglo-Saxon jurisprudence and English law after declaring independence has significant and dispositive implications on America’s slavery narrative. Simply, it destroys the Founding Generation’s argument that the Declaratory Act of 1766 was an unconstitutional overreach and that white Americans legally owned black colonials based upon colonial slave statutes and hereditary slave laws.
Moreover, as a slaveholder, lawyer, and author of the Declaration of Independence, Thomas Jefferson was infuriated when the Founding Fathers rejected his suggestion that the developing nation repudiate Anglo-Saxon jurisprudence and English law in favor of Roman Law. Jefferson recognized that Parliament abolishing colonial laws through the Declaratory Act of 1766 was a legitimate exercise of British imperial authority under English law and each colonial charter. He feared their listing it as a grievance would become conclusive evidence against colonial slavery if the U.S. Congress retained its connection to Anglo-Saxon jurisprudence and English law.
Jefferson understood that “a void act does not become good with the passage of time.” This principle was underscored by the Court of King’s Bench in 1703 in the case of Ashby v. White (2 Ld. Raym 938), where a legally entitled voter was wrongfully denied the right to vote by public officials. This legal axiom and Mansfield’s ruling in the Somerset case that declared “slavery was not allowed or approved by the law in this Kingdom” in 1772 convinced Jefferson that colonial slave statutes and hereditary slave laws could not be legally defended.
Jefferson’s conclusion was fastened to the fact that all colonial legislatures were bicameral with England’s monarch, and the slave laws were not lawfully codified since the King of England had not given his assent to such colonial slave statutes and laws. Moreover, these repugnant colonial statutes and laws were legislatively abolished by Parliament’s Declaratory Act of 1766—ten years before the U.S. declared independence from England. Therefore, Jefferson believed that the enslavement of black colonials in the American colonies could not be justified going forward, even if the American Revolution succeeded. This was palpably true if the U.S. maintained its connection to English law.
Parliament’s supreme legislative power was the cornerstone of the British democratic system during colonial times, and parliamentary sovereignty conferred unto the British Parliament the absolute legal authority to legislate on any matter unrestricted by any other governmental body throughout the Kingdom, including the judiciary, international entities, or past parliaments. Thus, constitutionally, Parliament had the supreme legislative power to repeal the colonial slave statutes and hereditary slave laws enacted by the colonial assemblies within North America in 1766—even if the King of England had previously approved the colonial slave laws. This emphasizes the constitutional role of parliamentary sovereignty and English law.
Parliamentary sovereignty was exercised when the British Parliament abolished all repugnant colonial slave statutes and hereditary slave laws in colonial America in 1766. Further, in the Somerset decision in 1772, Lord Chief Justice Mansfield of the British Court of the King’s Bench declared that slavery was not “allowed or approved by the law of this Kingdom.“ The British highest Court ruled slavery could only be lawfully established in the Kingdom by “positive law,” which meant only Parliament, not any lesser legislative body, had the legislative power or authority to enact such laws within the Kingdom.
Lord Mansfield’s affirmation of parliamentary sovereignty convinced Jefferson that the U.S. had no choice but to break away from Anglo-Saxon jurisprudence and English law entirely. However, despite Thomas Jefferson’s reasoned explanation and strong objections, Congress and each of the thirteen state governments adopted Anglo-Saxon jurisprudence and English law.
Moreover, when the United States adopted Anglo-Saxon jurisprudence in July 1776, mirrored by each state government, it effectively dismantled the legal framework supporting America’s ownership claims of the 500,000 black colonials who lived in the thirteen colonies at the time of independence in 1776, as well as their continued enslavement after the British departed the United States in November 1783. This adoption of English law mandated their liberation under the Treaty of Paris of 1783.
Furthermore, the U.S. Congress’ embrace of Anglo-Saxon jurisprudence and English law utterly shattered America’s present-day narrative that colonial slavery was lawfully inherited from the British, and it does pose profound challenges to the foundation of constitutionalism in the United States. The draconian consequences of adopting Anglo-Saxon jurisprudence and English law likely fueled Thomas Jefferson’s lament that the Declaration was “mangled” by Congress.
Leaping ahead to the end of the Revolution in 1783 and to the aftermath of the Treaty of Paris of 1783, we find America’s General George Washington struggling to deny Jefferson’s truth during his treaty negotiations with British General Guy Carleton in May 1783. Carleton insisted—black as well as white loyalists who had been captured or detained by American forces were, in point of legal fact, English subjects and always had been under English law. They must, therefore, be fully included when the two exchange prisoners once America’s Congress ratified the treaty.
English law was anathema to the practice of slavery on sovereign soil, although adopted by the United States Congress in July 1776 and despite the unlawful origins of slavery within the American colonies, which were abolished by Parliament’s Declaratory Act of 1766 because they undermined or called into question its supreme legislative authority, and Mansfield’s Somerset decision in 1772 that declared slavery was not “allowed or approved by the law of this Kingdom” and that it could only be lawful if enacted by “positive law,” a legislative authority only Parliament possessed, Washington claimed that colonial slave statutes and laws had long declared enslaved black colonials to be chattel.
Washington’s position that colonial slave statutes made black colonials the legal property of white Americans was absurd, inaccurate, and disingenuous, and the impasse was broken only after the two negotiators had agreed that each should compile registries listing black colonials under British control, scheduled for exportation out of the United States by name in American and English versions of what became known as The Book of Negroes. It was agreed that these registries would serve as the basis for further negotiations once the U.S. Congress addressed the issue, which could lead to resolving this international dispute.
Though Carleton had capitulated, he did manage to secure liberty for a fraction of the legally free black colonials, 3,000 or so. In his eyes, they had reclaimed their subjecthood as English law required. In the end, the United States did not abide by the Treaty of Paris of 1783 that guaranteed liberty to all Englishmen, and the U.S. also denied the 500,000 black colonials fundamental due process—and they and their descendants were relegated to life-long slavery and generational exploitation here in the United States.
Douglass thought black colonials were chattel property under codified colonial slave laws. Douglass was mistaken. Moreover, as it was hidden in colonial books—Douglass did not know that the Declaratory Act of 1766 had globally abolished all repugnant colonial laws in the American colonies, which denied or questioned Parliament’s supreme legislative authority, including slave laws, as they infringed upon Parliament’s supreme legislative power—parliamentary sovereignty before the Declaration of Independence.
This fact was conclusively reinforced in 1772 when England’s Court of the King’s Bench, led by Lord Mansfield, ruled slavery was not “allowed or approved by the law in this Kingdom.” Had Douglass known the facts, he would have been shocked by America’s criminal conduct. Yet, he would still conclude that the the nation used “a thin veil to cover up crimes which would disgrace a nation of savages.” Douglass, having himself experienced being treated as property, understood racism and typical white arrogance. Moreover, Douglass understood that U.S. slavery shackled the enslaved—as well as the enslaver.
Undoubtedly, Douglass would have recognized that the criminal origins of slavery—its legislative abolishment in 1766, combined with the U.S. adoption of English law, meant that the passage of time could never legitimize or overcome the unlawful beginning of colonial slavery.
First, colonial slave statutes and hereditary slave laws were never legally codified as valid colonial law, which made the condition of slavery in colonial America a legal fiction.
Second, colonial slave statutes and hereditary slave laws were legislatively abolished and repealed by an act of Parliament in 1766, exercising parliamentary sovereignty.
Third, the Somerset decision of 1772 by England’s Court of the King’s Bench affirmed that slavery was not a lawful condition in the Kingdom and could only be sanctioned by “positive law,” a legislative power that only the British Parliament possessed—which it had not exercised.
Fourth, instead of establishing a new legal system for the United States, Congress adopted the familiar English legal system, which made the abolishment of all colonial slave laws by the British legally conclusive.
Fifth, English law established that all colonial slave statutes and hereditary slave laws were “utterly null and void for all purposes whatsoever” and that the 500,000 black colonials were entitled to be “set at liberty” under the Treaty of Paris of 1783.