Planning Next Steps
Black individuals in the United States have long been marginalized and denied equal protection under U.S. law. This historical reality underscores the threshold urgency of challenging the narrative that prominent Founding Fathers, such as the Virginians Thomas Jefferson, George Washington, James Madison, John Marshall, and others, lawfully owned black colonials during colonial times. Establishing their lawful ownership of black colonials before the Declaration of Independence should be straightforward for historians and legal scholars. However, it is not because the condition called slavery was neither legally sanctioned by positive law nor considered a lawful condition when the Founding Generation declared independence in July 1776.
Moreover, after the American Revolution ended by treaty, America denied them fundamental due process of law, designated them as being slaves, and exploited 500,000 black Englishmen and their descendants, violating the Treaty of Paris of 1783 and the rule of law. No historian will be able to establish lawful ownership of black colonials due to the extralegal origins of colonial slavery in North America and the legislative consequences of the British imperial government’s exercise of parliamentary sovereignty. This is self-evident from Parliament’s American Colonies Act of 1766, commonly known as the Declaratory Act of 1766, which repealed colonial America’s slave statutes and “negro laws” “for all purposes whatsoever.”
These colonial slave statutes and racialized resolutions, such as the hereditary slave law of partus sequitur ventrem, were in direct conflict with Parliament’s supreme legislative power and English law in 1766. Furthermore, this legislative act by the British imperial government restored all liberty rights to black colonials suffering as enslaved people living in the American colonies. It returned them to the status quo ante—ten years before independence was declared on July 4, 1776, under English law.
In the words of Sir William Blackstone, an eminent English jurist, and a contemporary observer, the intention of the Declaratory Act “was to stifle all differences by the establishment of an undeniable principle that Parliament had the constitutional power to legislate the American colonies in case the repeal of the Stamp Act should leave anyone with the mistaken belief that it had given that up.” Under English law—Parliament held the supreme legislative authority to abolish any existing legislation in the Kingdom under parliamentary sovereignty and held the exclusive legislative power to pass “positive law” which was necessary to legalize colonial slavery in the American colonies and it never did.
The Somerset decision in 1772 affirmed parliamentary sovereignty, underscoring the Founding Generation’s grievance in the Declaration that colonial slave laws—their “most valuable laws” were abolished by the British imperial government. By labeling King George III a “tyrant” and accusing the British imperial government of abolishing “our most valuable laws” and “altering fundamentally the Forms of our Governments,” in the Declaration of Independence—the Founding Generation conceded that the British had legislatively abolished repugnant colonial laws before they declared independence in July 1776.
In 1823, Thomas Jefferson wrote that the other members of the committee “unanimously pressed on myself alone to undertake the draught [sic]. I consented; I drew it; but before I reported it to the committee, I communicated it separately to Dr. Franklin and Mr. Adams requesting their corrections. . . I then wrote a fair copy, reported it to the committee, and from them, unaltered to the Congress.” Jefferson frequently lamented that Congress’s alterations of key aspects of the Declaration of Independence and the imprudent formal adoption of Anglo-Saxon jurisprudence “mangled” the Declaration. He had based his meaning and the Declaration’s efficacy on the political philosophy of English political theorist John Locke, who posited that man’s most precious thing is property, defining it as “Life, Liberty, and Estate.” In Locke’s terms, “property” encompassed material things and ownership of self, so slavery was neither justifiable nor conceivable in Locke’s work, Two Treatises of Government.
Further, America’s Founding Generation knew that the Somerset decision was legally conclusive. Even a careful review of controlling legal precedent, treatises, and colonial charters provides no legal support for the present-day narrative that white colonials lawfully owned colonial blacks and, as a matter of law, were “excluded” from the Declaration of Independence.
According to historian David Armitage, the Declaration of Independence was a document of international law, influenced by Emerich de Vattel’s—The Laws of Nation, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations, a work of political philosophy and international relations. Declaring America’s independence was a necessary first step if the emerging nation was to have any hope of attaining the recognition it sought from the European powers.
Armitage supports this conclusion, observing that because “Vattel made independence fundamental to his definition of statehood,” the primary purpose of the Declaration of Independence was “to express the international sovereignty of the United States.” However, in being recognized as a sovereign nation, the United States became bound by universally accepted international traditions, laws, and decorum principles.
After the American Revolution, the potential disunification of the states was the main reason why the U.S. did not “set at liberty” the black colonials, denied 500,000 legally free black colonials due process of law, and made these black individuals the bedrock of America’s slave-based economy. In May 1783, British General Guy Carleton informed General Washington that these individuals were considered Englishmen by law and entitled to their liberty under the Treaty of Paris of 1783. Washington, however, opposed Carleton’s assertion, stating that these people were human chattel during colonial times. He argued that white Americans legally owned them based upon colonial slave statutes and hereditary slave laws in place at the time of America’s independence on July 4, 1776.
Washington knew he was wrong, as history supports, slavery developed due to the corruption of colonial government, and although it became endemic throughout the American colonies, no erstwhile Englishman who chose to separate from the British Kingdom and became an American legally owned a black colonial before or after the American Revolution ended because of the rule of law. Bound by colonial charters to English law and to a bicameral legislative structure with England’s monarch—slavery within the American colonies on its best day was only an extralegal and extrajudicial practice.
Moreover, the Court of the King’s Bench in Ashby v. White (2 Ld. Raym 938) in 1703, over 70 years before the Declaration of Independence, had reemphasized when a legal right is wrongfully denied by public officials that “a void act does not become good with the passage of time.” These reinforced protections of civil liberties and the accountability of English public officials destroyed Washington’s argument.
Under English law, these colonial slave statutes and hereditary slave laws enacted by colonial assemblies within the American colonies were null and void. They remained legal nullities because they lacked the approval of England’s King and violated both English law and England’s Magna Carta. Furthermore, even if slave laws had been codified and lawfully enacted in colonial America, Parliament’s Declaratory Act of 1766 legislatively abolished these colonial slave statutes and hereditary slave laws in 1766 “for all purposes whatsoever,” as they denied and questioned the supreme legislative authority of Parliament, power conferred unto Parliament by way of the English Bill of Rights of 1689.