In the classic treatise, Commentaries of the Laws of England in 1765, Sir William Blackstone observed that “If an uninhabited or infidel territory was colonized by Britain, then English law automatically applied in this territory from the moment of colonization.” British rule of law prohibited slavery on its soil and conferred legal protections for all persons under common law. This legal protection against slavery and guarantee of due process dated back to the Magna Carta of 1215, clause 40 of which reads: “To no one will sell, to no one will we refuse or delay, right or justice.” Britain’s charters did not confer plenary power unto any of the thirteen colonies in North America to enact a slave law or to divest any Afro-Englishman born in colonial America of subjecthood or legal protection.
During colonial times, the governor of a colony in America was appointed by the King and he had ultimate powers, functioning as the legislative head of the governor-in-council and colonial assembly. As legislative head of the council and colonial assembly… the governor had sovereign veto power, subject to judicial review by England’s Privy Council in London and ultimately, the Court of the King’s Bench… England’s highest court. By virtue of this structure, memorialized and specified in each colonial charter… the governor held Supreme power in the North American colonies. And of course, being vested with such power, the King expected each governor to use such power with vigor for the advancement of the King’s interests.
The colony of Virginia’s General Assembly was bound by colonial charter to prohibit slavery within the colony. Further, under the Royal Assent by Commission Act of 1541, a colonial assembly was required to secure the King’s permission unto any colonial statutes and laws and the Sedition Act of 1661 made it a crime when a colonial failed to so and purported to enact a statute or law within the Kingdom. Yet… Virginia’s House of Burgesses, its legislative assembly enacted a colonial statute in 1660 declaring that all blacks held in indentured servitude would be considered enslaved for life. This colonial statute was feckless and not positive law since Virginia’s House of Burgesses did not have the plenary authority to pass a law in 1660 turning indentured servants with African ancestry into lifelong slaves. Also, as this law was repugnant to England common law and English law, Virginia’s House of Burgesses was required to secure the King’s assent to make the colonial statute positive law and it failed to do so. Nonetheless, two years later in 1662… Virginia’s House of Burgesses enacted a tandem colonial statute called partus sequitur ventrem that purported to change English common law by declaring that the legal status of a child born in the colony followed its mother, rather than father. Virginia’s hereditary slave law of partus sequitur ventrem provided: “WHEREAS some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free. Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shall be bond or free according to the condition of the mother.”
The speciousness of this colonial statute is quickly revealed since there was no legal condition known as “slave” under English law in 1662. Virginia’s 1660 colonial statute declaring blacks held in indentured servitude would be considered enslaved for life was legally defective… since Virginia’s House of Burgesses did not have plenary authority to enact a slave law and it failed to secure the King’s assent. Furthermore, Virginia’s 1662 colonial statute of partus sequitur ventrem was legally defective for the same reasons. The failure of Virginia’s House of Burgesses to secure the King’s assent was a fatal defect to the lawful enactment of the hereditary slave law: partum sequitur ventrem in 1662. And yet, Virginia’s hereditary slavery practice operated extralegally for generations due to colonial tyranny, graft and corruption and other colonies soon followed suit.
Objectively, all colonial statutes or colonial enacted slave laws required the King’s assent to be positive municipal law. And with respect to the significance of the King’s assent upon colonial statutes enacted within the 13 North American colonies… the Declaration of Independence is an inculcating document and the “smoking gun”. A careful review of every colonial charter, going back as far as 1606… when King James I granted the first charter to the colony of Virginia through the grant of a royal charter to Parliamentarian James Oglethorpe to establish a utopian colony that planned to ban slavery… becoming Georgia in 1732 withheld conferring plenary power unto colonial legislatures. Under English law… as none of the colonial statutes legitimating slavery had the King’s assent… colonial slavery and all race-based laws were unlawful. The significance of the King not giving his assent to slave laws enacted by colonial legislatures is dispositive, as English law prohibited slavery on its soil. The consequence is that colonial slavery was never lawfully enacted, as colonial legislative assemblies never possessed plenary power to enact a law or to pass and law that changed, limited, or divested Afro-Englishmen of subjecthood or legal rights and protections, in the objective absence of the King’s assent upon such an alleged law.
Significantly, grievances in the Declaration of Independence proves the importance of the King’s assent on colonial laws. And by withholding his assent the King was causing grief for each of the 13 North American colonies, as it was prominently highlighted in the first three grievances in the Declaration of Independence and then raised again in the eighth and ninth grievances brought against King George III in July 1776.
(1) “He [King George III] has refused his Assent to Laws, the most wholesome and necessary for the public good.”
(2) “He [King George III] has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained and when so, has utterly neglected to attend to them.”
(3) “He [King George III] has refused to pass other Laws for the accommodation of large districts of people, unless these people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only”…
(8) “He [King George III] has obstructed the Administration of Justice by refusing his Assent to Laws establishing judiciary powers.”
(9) “He [King George III] has made judges dependent on his Will alone, for the tenure of their office, and the amount and payment of their allies.”
Virginia’s House of Burgesses did not have plenary power to enact a colonial slave statute and the bicameral nature of its colonial legislative system requiring the King’s assent to a colonial statute to be positive municipal law was a vexing problem for all of the 13 colonial governments within North America. While Virginia’s colonial slave statutes should have been vetoed by Virginia’s Governor Berkeley… those in Virginia’s House of Burgesses and planters who benefitted from slavery paid him to look the other way and he complied. Foremost, Berkeley in his capacity, as the governor and head of the court system conspired to foreclose any type of appellate or legislative review of this hereditary slave law. The Enlightenment philosopher Charles-Louis Secondat, Baron de Montesquieu… perhaps the most influential intellectual on America’s founding generation maintained that “the misfortune of a republic… happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their primary passion”. Such was the state of affairs within the royal colony of Virginia during the 1660s… as the corruption of the governor’s office destroyed all pretense of being a government of laws, not of men and doubtlessly… eviscerated all questionable doubt or debate… as it represented colonial tyranny in its rawest form.
Slavery within the North American colonies was a crime. Slavery evolved through the legerdemain of colonial tyranny and corruption of government. Virginia’s 1660 and 1662 colonial statutes passed by Virginia’s House of Burgesses were not positive municipal laws. These colonial statutes conflicted with England’s common law and English law. Virginia’s House of Burgesses had no plenary power to enact a law creating a slave class within the colony of Virginia in 1660 or to enact partus sequitur ventrem in 1662. Nonetheless, the extralegal practice of hereditary slavery became endemic throughout the North American colonies, based upon colonial tyranny, corruption of government officials, and greed. Afro-Englishmen and Africans living in the North American colonies were placed below the rule of English law during colonial times and exploited.