Restorative Justice for Slavery
America’s Revolutionary War (1775-1783) was a civil insurrection by which 13 of Great Britain’s North American colonies won political independence and formed the United States of America.
Royal Proclamation of 1763
Britain’s King George III issued the Royal Proclamation of 1763 on October 7, 1763. It followed the signing of the Treaty of 1763 by England, France, and Spain that ended the Seven Years’ War, also called the French and Indian War in the North American theatre. The treaty granted England a great deal of France’s territory within North America… and in turn, England declared the boundaries of settlement for inhabitants of the 13 colonies to be Appalachia. And the boundaries of settlement created tension, estrangement, and vigorous protest as the colonies themselves had already begun to set their sights on expanding their western borders.
Many colonists disregarded the proclamation’s boundary line. In the aftermath, Great Britain’s government found itself adjusting Native American treaties due to violative conduct on the part of colonists. The British government realized a need to regain control over the North American colonials, after having long adhered to an early 18th-century policy of salutary neglect: a policy under which trade regulations were laxly enforced and imperial supervision of internal colonial affairs was loose, as long as the colonies remained loyal to the British government and contributed to the economic profitability.
England had also been turning a blind eye to colonial violations of trade regulations. During this period of salutary neglect, colonial legislative and legal institutions began enacting and enforcing statutes, laws, and resolutions violative of colonial charters. The practice of hereditary slavery became endemic throughout British North America, and Parliament’s enactment of the Stamp Act in March 1765 was a step towards regaining control of colonials and raising funds for England. The Stamp Act taxed all commercial and legal papers, newspapers, pamphlets, cards, almanacs, and dice. It was to go into effect on November 1 of that year… but the northern colonies organized strident resistance to the Stamp Act.
In Massachusetts, the Lieutenant Governor had his house burned to the ground, and other colonial officials were threatened at gunpoint. Stamp distributors were harassed, colonists marched through the streets, and prominent citizens published articles criticizing Parliament for taxing them without their consent. They challenged Parliament’s right to make any laws governing them since they were not represented in Parliament.
Colonial unrest coupled with a flood of petitions to repeal the Act by British merchants and manufacturers caused many Parliament members to support repeal. However, other members threatened that they would not sign the Stamp Act repeal unless some statement affirming Parliament’s sovereignty over North American colonies accompanied it. They believed that a repeal of the Stamp Act would falsely infer that they had no authority to tax or make laws regarding the colonies.
The Declaratory Act of 1766, also called the American Colonies Act of 1766, resulted from their negotiations. England’s Prime Minister Lord Rockingham accepted Parliament’s repeal of the Stamp Act and enactment of the Declaratory Act called the “Twin Brothers” on March 18, 1766, and the next day… King George III signed the Act.
The news that Parliament repealed the Stamp Act caused rejoicing up and down the seaboard. The colonial celebrations were marked by speeches, festive galas, and even the dedication and then erection of King George III’s statue in New York City. The reception for the Declaratory Act of 1766 was surprising since the Act had far-reaching, radical, and sweeping consequences upon colonial governance. Yet,… few colonists voiced concerns… and fewer still raised alarms concerning Parliament affirming parliamentary sovereignty, repealing colonial statutes and laws or even the explicit declaration that Parliament had “full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.”
Besides, the Declaratory Act of 1766 declared “all resolutions, votes, orders, and proceedings” in the colonies that denied or questioned Parliament’s power and authority to make laws binding the colonies “in all cases whatsoever” were “utterly null and void” and rescinded the lawmaking authority granted to colonial legislative assemblies. The Act’s plain meaning was that British colonists in North America were the Crown subjects who could be ruled over at Parliament’s pleasure, and they had no say in their internal affairs. The Declaratory Act of 1766 remained on England’s law books until 1964, and concerning colonial governance, it was in alignment with English common law and colonial charters.
The Declaratory Act of 1766 did not cause the colonists to protest its enactment as most saw the Act as a mere restatement of the known and accepted constitutional state of affairs. Moreover, colonial leadership saw a direct parallel to the Dependency of Ireland on Great Britain Act of 1719, also called the Irish Declaratory Act of 1720, which also stated Parliament had the full “authority to make laws and statutes of sufficient validity to bind the Kingdom and people of Ireland.” Further, in 1766 lawyer John Randolph of the colony of Virginia, whose father was Sir John Randolph… the only Virginian to be knighted stated that the Declaratory Act merely made explicit the constitutional state of affairs established in 1689.
The Declaratory Act of 1766 rendered all colonial statutes and laws null and void and rescinded and removed all colonial lawmaking power and authority from colonial legislative assemblies within North America. The colonies and their state of affairs were returned to status quo ante (pre-colonial legislature). By repealing colonial statutes and laws, English law controlled as observed by jurist Blackstone in the classic treatise… “if an uninhabited or infidel territory was colonized by Britain, then English law automatically applied in this territory from the moment of colonization.”
Moreover, with the repeal of colonial statutes and laws, all colonial slave statutes and regulations became null and void. Yet, slavery within the North American colonies continued, and no challenge to the Declaratory Act of 1766 emerged until sporadic northern colonial rebellion erupted during the 1770s and only then would patriots like Patrick Henry, Thomas Jefferson, and John and Samuel Adams unfairly invoke the Act as a symbol of parliamentary tyranny.
Then in 1767… Parliament passed a set of acts called the Townshend Acts, which placed taxes on many staple goods, including paper, glass, and tea, and established a Board of Customs in Boston to effectuate trade regulations. The British government enacted new tariffs on the belief that colonials only objected to internal taxes and not to external taxes such as customs duties. However, patriot John Dickinson of the colony of Pennsylvania argued against the acts’ constitutionality because their purpose was to raise revenue and not regulate trade. The colonists responded to the taxes by organizing new boycotts of British goods, but it was not effective as goods taxed by the Townshend Acts were widely used.
In February 1768, the Assembly of Massachusetts Bay issued a circular letter to the colonies urging them to coordinate resistance. The governor of Massachusetts Bay dissolved the assembly when it refused to rescind the letter. Tensions ran high after a riot broke out in Boston in June of the same year over the sloop Liberty seizure, owned by John Hancock for alleged smuggling. Custom officers were forced to flee, prompting the British to deploy troops to Boston to enforce Britain’s tax laws.
The city of Boston, whose population was 16,000 colonists, had 2,000 soldiers. And on March 5, 1770, after months of tensions due to occupation and taxation, colonists and British soldiers clashed in the streets of Boston after a large crowd grew threatening, throwing snowballs, rocks, and debris at them. What ended with five civilians killed by gunfire and a black colonist named Crispus Attucks was the first to fall. However, little is known about the first black patriot prior to that fateful night except that he had escaped from his master some twenty years earlier and secured work as a seaman. In the Boston Gazette and Country it reported his as being a “stranger.” He was described by the same paper as being “6 feet two inches high, short curl’d hair, his knees nearer-together than common,” and was known to the townspeople as “the mulatto.”
Dubbed the Boston Massacre, it was marked when political tensions between British soldiers and colonists became deadly. The soldiers were tried and acquitted, but the clash’s characterization as being a massacre soon began to turn colonial sentiment against the British. This clash started a downward spiral in the relationship between England and the colony of Massachusetts Bay.
Then in London in October 1771, James Somerset, a slave born in the colony of Virginia born escapes… but was recaptured by the end of November and jailed aboard a slave ship Ann & Mary heading for a Jamaican sugar plantation. The slave master Charles Stewart directed that Somerset be sold to a plantation for labor. Somerset’s three godparents from his baptism as a Christian in England, John Marlow, Thomas Walkin, and Elizabeth Cade, made a petition before England’s Court of the King’s Bench for a writ of habeas corpus on December 3, 1771. Captain John Knowles of the slave ship produced Somerset before the Court of the King’s Bench, and a trial followed. The case was repeatedly adjourned.
Then during the trial in June 1772… Somerset’s team attacked the lawfulness of slavery under colonial statutes and laws, and by acknowledging parliamentary sovereignty, the high court agreed. Then the court, perhaps relying upon the Declaratory Act of 1766 that repealed all colonial statutes and laws, made the judicial determination that slavery was not “allowed and approved by the laws of this Kingdom” and could only be lawful by “positive law”… a law enacted by Parliament.
Doubtlessly, the Somerset Decision being coupled with Parliament’s Declaratory Act of 1766, which repealed colonial slave statutes and laws, created a schism between northern and southern colonies. The event creating the division was the British government’s directive to its colonial governors not to enforce the Somerset Decision, fearing social chaos and rebellion within North America, as the economy and social order of southern colonies were wholly based upon slavery. This British directive caused Massachusetts colonial governor to veto legislation advanced by Massachusetts’ General Court and overrule judicial rulings abolishing slavery and freeing black colonists based upon the Somerset Decision.
In the aftermath of the Somerset Decision… the British government provided a safe harbor for slaveholding colonists, as they looked for a long-term solution since the Court of the King’s Bench ruled slavery was not “allowed and approved by the laws of this Kingdom” and reaffirmed parliamentary sovereignty. However, the Somerset Decision caused slaveholding colonists to lose confidence and faith in continuing their scheme of hereditary slavery with corrupt British government officials. The Somerset Decision caused their relationship to deteriorate, and soon the same slaveholding colonists changed sides and could be found spearheading a push for independence.
Subsequently, in Boston, a group of colonists boarded three British tea ships and dumped 342 chests of tea into the harbor in protest of the Tea Act of 1773. The Tea Act allowed the British East India Company to sell tea from China in American colonies without paying taxes apart from those imposed by the Townshend Acts. Northern colonists strongly opposed the taxes in the Townshend Acts as a violation of their rights. However, England had a different view of the Act and responded by closing the Boston port, and Parliament passed a series of acts known collectively as the Intolerable Acts. Afterward, a period of relative quiet descended on the British North American colonies.
Dunmore's Emancipation of 1775
Even so, the crisis of the past decade had created incompatible mindsets on opposite sides of the Atlantic. And for some months, people in the colonies had been gathering arms and powder and had been training to fight the British, if necessary, at a moment’s notice. So, when the British Army marched out of Boston on April 19, 1775, messengers on horseback, including Paul Revere, fanned out across New England to raise the alarm. Summoned by the feverish pealing of church bells, militiamen from countless hamlets hurried toward Concord. And within a week, 16,000 men from the four New England colonies formed a siege army outside British-occupied Boston.
The rebellious activities and colonial protests created tension between Britain and the New England colonies. It caused an order to be given to all colonial governors to secure all gunpowder to deprive potential rebels of this crucial military supply. Virginia’s governor Lord Dunmore complied on April 20, 1775, ordering Lieutenant Henry Colins to remove the gunpowder from Williamsburg’s public magazine. He pulled fifteen half-barrels and transported it to a British warship.
Subsequently, a mob of colonists confronted Lord Dunmore, and in believing he had acted to expose them to their slaves, they were outraged. Lord Dunmore was unapologetic as he repeatedly threatened to free and arm slaves to defend the Royal government’s cause. And on May 3, 1775, the Hanover militia led by Patrick Henry arrived outside of Williamsburg. Once Lord Dunmore was informed of the militia force, Henry caused Lord Dunmore to abandon the governor’s palace for his hunting lodge in Porto Bello in nearby York County. There, Henry’s militia laid siege, and Lord Dunmore was wounded in the leg at the hunting lodge, forcing him to flee and take refuge aboard the man-of-war Fowey at Yorktown.
Then on November 7, 1775… Lord Dunmore made good on his threat to free and arm slaves to defend the Royal government’s cause when he issued a proclamation. The proclamation adjudged colonial patriots as traitors to the Crown and declared “all indented servants, Negroes, or others… free that are able and willing to bear arms.” The proclamation was well-publicized, and slaves throughout all 13 of Great Britain’s North American colonies separated themselves from their masters to join England’s military under Lord Dunmore’s command.
Lord Dunmore’s proclamation was an iteration of England’s Southern Strategy, envisioned by the King’s ministers to quell the rebellion by crippling the colonial economy, causing social chaos in the southern colonies, weakening and splintering the Continental Congress.
Ironically, Lord Dunmore’s proclamation created an egalitarian society… eight months before the Declaration of Independence the following July. But, this Southern Strategy was not altruistic, nor was it a social experiment; instead, it was economic warfare to financially ruin the founding generation’s leadership… whose wealth was based upon slavery and used to finance and underwrite rebellion in colonial America.
The patriots’ response to Lord Dunmore’s proclamation was that they instituted restrictions upon slave meetings and activated militias to patrol the roads and waterways throughout the southern colonies. Besides, colonial newspapers warned colonial blacks, “Be not then… tempted by the proclamation to ruin your selves”. They claimed Lord Dunmore’s proclamation was a ploy, but it did not work, as colonial blacks from all colonies were leaving their masters in pursuit of freedom. And although their risks in escaping bondage had never been as great, Afro-Englishmen in search of liberty joined the English cause.
England’s Southern Strategy was successful, as they were able to form a black regiment with former slaves called Dunmore’s Ethiopian Regiment by late November 1775. Over 12,000 former slaves enlisted in the regiment, and it marked a significant turn in both English policy and colonial race relations. Their regimental uniforms had sashes inscribed with the words “Liberty to Slaves.” By December 1775… Dunmore’s Ethiopian Regiment saw battle in Virginia at Kemp’s Landing and Great Bridge in 1775.
When Dunmore’s Ethiopian Regiment was disbanded, the Black Company of Pioneers, also known as the Black Pioneers, was established in May 1776. They retained Dunmore’s Ethiopian Regiment’s sashes and the slogan “Liberty to Slaves.” While it was not a fighting unit, the Black Pioneers built both huts and accommodations and dug fortifications under consistent heavy fire and in the most dangerous conditions. The Black Pioneers served under England’s Commander-in-Chief General Henry Clinton in a support capacity in North Carolina, New York, Rhode Island, and Pennsylvania. The Jersey Shore Volunteers, the King’s American Dragoons, the Jamaica Rangers, the Mosquito Shore Volunteers, and the Black Brigade were all combat regiments.
These black regiments fought in the North, and the Battle of Monmouth in 1778 occupied New York until War’s end. Black loyalists also commonly served in the Royal Navy and as musicians in nearly all units. Their contribution to America’s Revolutionary War prompted the Continental Army to reverse its November 1775 declaration that black was ineligible to serve in the Continental Army.
Declaration of Independence
In June 1776, the Continental Congress took over the New England army, creating a national force, the Continental Army, which refused to allow black people to serve in its ranks. However, Lord Dunmore’s proclamation caused General George Washington to reconsider his policy of segregation… as he stated in a letter to Colonel Henry Lee III that success in the rebellion would come to whatever side could arm “negroes” the fastest.
Patriot James Madison felt that England’s Southern Strategy initiative was the kind of “tampering with the slaves” that he had most feared. “To say the truth,” he confided in a friend, “that is the only part in which this colony is vulnerable… we shall fall like Achilles by the hand of one that knows that secret”. Acting on his belief, Washington then reversed himself, allowing recruiters to reenlist “free negroes” who had already served in the army, as he worried that these Afro-Englishmen might cross over to the British side. The Continental Army’s enlistment of “free negroes” and then slaves in the patriot forces served honorably during the War.
By late June 1776, nine Provincial Congresses were ready for independence; one by one, the last four fell into line: Pennsylvania, Delaware, Maryland, and New York, and the following month, they unanimously adopted the Declaration of Independence on July 4. Top of mind was the words of fellow patriot Benjamin Franklin of Pennsylvania, who perfectly framed the moment by reminding everyone that they “must, indeed, all hang together, or, most assuredly, we shall all hang separately.” Franklin’s musing placed the matter in perspective, as the rebellion had become mortally personal for all.
And concurrently slaveholding Patriot Thomas Jefferson, the author of the declaration, brought a bill to Congress to have the U. S. abandon English law in favor of Roman law, which was favorable to a slavery-based Republic. However, Jefferson was not persuasive, as the U. S. Congress formally adopted English law in July 1776, as well as the legislative assemblies in each of the 13 states.
English common law, the Declaratory Act of 1766, the Somerset Decision of 1772, and America’s Declaration of Independence all undermined colonial slavery. Yet, the U. S. Congress and each of the 13 states formally adopted English law as the law of the land. The founding generation was labeled hypocrites by British abolitionists for their refusal to recognize the liberty rights of black colonists under English law.
But their response to British abolitionists, as delivered by Benjamin Franklin, was “Pharisaical Britain! To pride thyself in setting free a single slave that happens to land on thy coasts, why thy merchants in all thy ports are encouraged by thy laws to continue a commerce whereby so many hundreds of thousands are dragged into a slavery that can scarce be said to end their lives since it is entailed on their posterity!”
Franklin’s ranting was pure misdirection and flawed since colonial slavery was an extralegal institution that existed due to a corrupt British government practice of placing Afro-Englishmen below English law. The colonial legislatures did not have plenary authority to change England’s patrilineal descent system or the power to enslave Englishmen born within the North American colonies. The Declaratory Act of 1766 eviscerated England’s wrong-headed policy of salutary neglect and made one thing clear… Parliament was the sole legislature of His Majesty’s Kingdom by repealing all colonial statutes and regulations and stripping colonial legislative assemblies of lawmaking powers.
Moreover, England was “a nation of laws, not men,” and the Twelve Judges of the Court of the King’s Bench embodied this core proposition by affirming the legislative supremacy of Parliament. Moreover, the court rejected the legal sufficiency of colonial slave statutes and regulations by ruling that slavery was not “allowed and authorized by the laws of this Kingdom” and could only be lawful by way of “positive law”; a law promulgated by Parliament. This way, England could and should have taken pride in setting free a single slave that happens to land on its coasts.
Phillipsburg Proclamation of 1779
Struggling, the patriots sought and found foreign allies that transformed this English Civil War into an international war when France entered in 1778 and the following year Spain. Nonetheless, France and Spain’s involvement could not change the fact that this was an escalating rebellion between Englishmen. Underscoring this exact point in June 1779, British Commander-in-Chief Henry Clinton issued the Phillipsburg Proclamation, an iteration of England’s Southern Strategy that liberated the slave population.
The British were optimistic that the unconditional emancipation of the slave population would turn the War around if black colonists suffering as slaves came to the British line. The British did not lose sight that slavery within the North American colonies was a crime by English law. Further, it was integral to their calculus that colonial legislative assemblies never had the legal authority to enact any laws. The Declaratory Act of 1766 repealed colonial slave statutes and regulations. Moreover, the King’s Bench affirmed parliamentary sovereignty and then declared slavery was not “allowed and approved by the laws of this Kingdom” in the Somerset decision in 1772. English law was established… black colonists were suffering colonial tyranny.
British General Henry Clinton exercised plenary power when he liberated black colonists in June 1779. The Phillipsburg Proclamation was authorized by English law… a patent of mercy and liberation. It lawfully liberated all enslaved people living within the North American colonies, now the United States. Material, black colonists, and kidnapped Africans were subject to the English rule of law.
The Phillipsburg Proclamation was a successful initiative, not dispositive, and as 1781 dawned, General George Washington, was warning all that would listen that his army was “exhausted” and the citizenry “discontented.” And John Adams publicly stated that France, faced with mounting debts and having failed to win a single battle in the American theater, would not remain in the war beyond 1781. “We are in the Moment of Crisis,” he wrote.
Both Washington and Adams assumed that unless the U. S. and France scored a decisive victory in 1781… the outcome of the war would be determined at a conference of Europe’s great powers. Afterward, France withdrew her support of the U. S. war effort, and by early 1782, America’s treasury was empty. So, as the U. S. teetered on financial and social collapse, America sued for peace, choosing Benjamin Franklin, John Jay, John Adams, Thomas Jefferson, and Henry Laurens as U. S. Peace Commissioner to negotiate terms. England’s ending date of British rule was the sine qua non for any peace treaty, and the Treaty of Paris of 1783 was agreed to, and on November 30, 1782, the two nations entered a preliminary accord.
England and the U. S. agreed to a truce that ceased “hostilities”… to “set at liberty” all prisoners on both sides and a concession that British rule would span until the treaty’s ratification was finalized. The ending date of British rule was the sine qua non for any peace treaty. But when news of a preliminary peace treaty was known in the U. S., the founding generation began kidnapping Revolutionary War-era blacks off public streets, in their homes, and placed them into slavery.
Carleton and Washington
The kidnappings were widespread, organized and it violated the cessation of hostility truce between England and the U. S. This cause England’s General Guy Carleton to lodge a formal attestation of treaty violation against the U. S. in early May of 1783, to a U. S. delegation led by America’s future President, General George Washington.
Carleton told the U. S. delegation… that the British saw former slaves as British subjects… and thereby entitled to liberty and protection under the treaty. This was a legal conclusion that was underpinned by the facts (1) colonial slave statutes and laws were repealed by the Declaratory Act of 1766; (2) “American Laws” were judicially struck down in 1772 by the Somerset Decision; (3) over 90 percent of the slave population was born within the North American colonies and were English subjects by birth and English law (no different than all colonial Englishmen)… and less than 10 percent were Africans and (4) his predecessor General Henry Clinton liberated all slaves exercising plenary authority by virtue of the Phillipsburg Proclamation. Further, he told the U. S. delegation that the British would be removing all Revolutionary War-era blacks from the U. S. if they wanted to leave according to the treaty.
Washington and the delegation rejected Carleton’s interpretation of the treaty. Carleton inquired as for specifics and was baffled when Washington claimed all former slaves were owned by Americans based upon colonial statutes… and then he proclaimed that England would be violating the treaty if he were to remove blacks from America.
Washington was mistaken since; (1) colonial slave statutes and laws were repealed by the Declaratory Act of 1766; (2) the colonial legislative assemblies never had plenary authority to change the patrilineal descent system and then enslave colonial-born people of African descent; (3) colonial statutes and laws were judicially struck down in 1772 by the Somerset Decision; (4) the U. S. and each state legislature formally adopted English law and (5) the sine qua non for the treaty was the U. S. concession of British rule which made British General Clinton’s Phillipsburg Proclamation of June 30, 1779, conclusive, as he exercised plenary power when he liberated all slaves.
The two commanders were unable to agree on this point, as Carleton was unclear about Washington’s knowledge or understanding of the treaty’s sine qua non or the legal consequence of using the treaty’s ratification date as the end of British rule. Furthermore, Carleton feared that this contested issue might unravel the treaty, so he secured Washington’s assurance to refer the contested matter to the U. S. Congress.
Carleton and Washington’s agreement caused both nations to list blacks the British evacuated from the U. S. in separate registries called the Book of Negroes. However, the U. S. prevented a mass exodus of Revolutionary War-era blacks by erecting a dragnet that surrounded British ships, and only 3,000 Afro-Englishmen escaped capture. However, Britain just evacuated 3,000 Revolutionary War-era blacks out of the U. S. While Washington agreed to refer the matter of Revolutionary War-era blacks’ legal status to the U. S. Congress did not address the contested issue. Instead, the U. S. made 500,000 Afro-Englishmen… the bedrock of its emerging slave-based economy and did not give these presumptive British citizens due process, although authorized by controlling law.
Presently, the British version of this registry is held in The National Archives in Kew, London. The U. S. version of this registry is regulated by the National Archives and Records Administration in Washington, D. C.
The Definitive Treaty of Peace in 1783 also called the Treaty of Paris of 1783… America’s first international treaty predates the U. S. Constitution, which declared in Article VI of the U. S. Constitution, a treaty, as a matter of domestic law, is the “supreme Law of the Land.” Further, only the U. S. Constitution is superior to a treaty, and the latter has the equivalent legal dignity of a statute. Article II of the Constitution further states that the United States President should “take care that the laws be faithfully executed.”
On the other hand, international law presents a somewhat different hierarchy of legal rules. From the perspective of international jurisprudence, the foundational prescription is pacta sunt servanda: treaties are to be respected and must obey international obligations.
Treaties and other forms of international law, or previously called Law of Nations, therefore, occupy the apex of the legal pyramid and all domestic authorities of any particular country… whether denominated as rules of its national Constitution, ordinary legislation, or in any other manner… are subsidiary. A country can not, under this system, interpose domestic law as a justification for its failure to meet treaty requirements. If it could, there would not be much point in concluding such agreements. If a valid treaty imposes an obligation, international law will demand adherence to it. Thus, juxtaposing these texts, it is “black letter law” that a treaty must be enforced unless it runs afoul of a provision of the Constitution or if a directly contrary stipulation supersedes it in a subsequently enacted statute. Thus, under U. S. law… the ratified Treaty of Paris of 1783 is the supreme law of the land.
The Treaty of Paris of 1783 was signed on September 3, 1783. Then on January 14, 1784… the legislature of the U. S. ratified the treaty. However, the U. S. refused to “set at liberty” 500,000 Afro-Englishmen who were British subjects under English law. The U. S. enslaved 500,000 Afro-Englishmen who, according to the treaty, should have been released as Parliament’s Declaratory Act of 1766 repealed colonial slave statutes and regulations, and England’s high court in the Somerset case affirmed parliamentary sovereignty, then struck down colonial slave statutes and laws. Further, liberty was a personal right under English law.
Moreover, on June 30, 1779, His Majesty King George III’s government saw fit to liberate black people enslaved within the North American colonies. The ratification of the Treaty of Paris of 1783 conceded continued British rule. Thus, the presumptive legal status of the 500,000 enslaved blacks was prisoners of this English Civil War. It must be addressed forthrightly if a simple, durable restorative justice program for the horrors of U. S. slavery is to be proffered by U. S. policymakers.
Doubtlessly, the British and U. S. agreed to continuous British rule through the treaty ratification process. The British rejected the U. S. Peace Commissioners’ suggestion that the treaty memorializes the 4th of July 1776… the Declaration of Independence as the date in the accord for the ending of British rule of the North American colonies.
The British reasoning for rejecting all earlier dates for marking the end of British rule was candid, sobering, and unwavering. For domestic and international reasons… the British needed to position the ending of the War and the resulting treaty as granting its erstwhile (disgruntled) citizens their independence, not anything else. The end date of British rule was indeed the sine qua non for any peace treaty with the U. S.
The U. S. Congress and each state legislature had formally adopted English law over Jefferson’s objections after the Declaration of Independence in the summer of 1776. These legislative acts by the U. S. government and each of the states bound all Americans to British jurisprudence. Moreover, colonial slave statutes and regulations were legislatively repealed by Parliament’s Declaratory Act of 1766 and removed all law powers of lawmaking conferred unto colonial assemblies. In 1772, colonial statutes and regulations were judicially struck down by the Court of the King’s Bench’s Somerset Decision. A rebuttable presumption that “colonial statutes” became null and void and were legal nullities before the Declaration of Independence is a framed and poised threshold question. Thus, the question of the legal sufficiency of colonial statutes must be addressed as a condition precedent.
Within the four corners of the Treaty of Paris of 1783 and the U. S. conceded the English rule of law over the North American colonies (states) during the resulting war. As well, the U. S. was on actual notice that England claimed liberty on behalf of 500,000 Revolutionary War-era black colonists, former slaves who were emancipated by the Phillipsburg Proclamation and were prisoners of American nationals. The United States made these 500,000 Revolutionary War-era black colonists the bedrock of its slave-based economy without granting them due process of law and thereby did much violence to the international treaty.
Restitution for Slavery
In September 2016… a study by the United Nations Working Group of Experts on People of African Descent, a body that reports to the international organization’s High Commissioner on Human Rights, described the United States’ history, as it relates to black America as… “racial terrorism” and saw the refusal of the U. S. to respect fundamental human rights of people of African descent and its institutionalized racist policies and practices as irrefutable evidence.
Moreover, the U. N. Report highlighted a link between present injustices and the dark chapters of colonial history, observing “[I]n particular, the legacy of colonial history, enslavement, racial subordination and segregation, racial terrorism and racial inequity in the United States remains a serious challenge, as there has been no real commitment to reparations and to truth and reconciliation for people of African descent.”
Further, the U. N. Report noted … “[T]he dangerous ideology of white supremacy inhibits social cohesion amongst the U. S. population” and advocated for the United Nations’ involvement and continued leadership.
About 160 years ago… the notion of reparations for U. S. slavery was first introduced into America’s consciousness. And it was an equitable gesture when during America’s Civil War… Union General William Sherman concluded that each former slave family should receive 40 acres. Sherman signed Field Order 15 and allocated 400,000 acres of confiscated Confederate land to black families. Further, families were to receive mules left over from the Civil War… thus, it gave rise to America’s first reparations plan… forty acres and a mule. But after President Abraham Lincoln was assassinated in April 1865… the new president, Andrew Johnson, nullified and reversed Field Order 15 and returned the land to former slave owners.
Everyone is taught that U. S. slavery was legal, inherited from the British, and slaves had no adequate remedy at law for the horrors and exploitation of U. S. slavery. Restorative justice, reparations, and restitution programs for the horrors of U. S. slavery must be based upon an objective determination of accountability and a commitment to address abuse, injury, and consequential losses associated with violations of the Treaty of Paris of 1783… that ended America’s Revolutionary War. Ascribing accountability means answerability, blameworthiness, liability, and promising an honest and truthful account-giving.
The issue of reparations has been saddled with two ahistorical beliefs; (1) America’s founding generation legally owned black slaves during colonial times, and (2) slavery was lawfully started here in the U. S. in the late 1780s. These are threshold beliefs framing the issue of reparations and foreseeably are the main reasons in a recent poll conducted by AP-NORC Center for Public Affairs Research… only 35 percent of Americans support reparations for U. S. slavery.
The recurring arguments opposing reparations are: that there are no black slaves living today; slavery ended nearly 160 years ago, at the tremendous cost of thousands of white lives due to the Civil War, and many families came to America after slavery ended… thus reparations are unfair.
The refutation of these arguments is: reparations are not against white America or individuals… instead, it is against the American government and society, which has continued from slavery. Moreover, victims of human rights violations are entitled to obtain adequate and effective reparations… and it is recognized in relevant international instruments. Nonetheless, this poll’s bright spot is that among those ages 18 to 29, the number rose to 45 percent.
It is an axiomatic principle—victims awarded equitable relief must not have a remedy at law. And they must plead for equitable relief… in effect, waiving and abandoning all common law remedies. The U. S. Supreme Court in Franklin v. Gwinnet County Public Schools, 503 U. S. 50, 75, 76 (1992) echoes the finding that a tribunal must determine the adequacy of a remedy in law before resorting to equitable relief.
Choosing equitable relief would be problematic since Revolutionary War-era blacks were legally free people. The condition and institution called slavery within the North American colonies were not authorized by English law. The colonial statutes and regulations purported to allow colonial slavery was repealed by Parliament’s Declaratory Act of 1766. Accordingly, parties injured by the practice of slavery do have a remedy at law since it was prohibited on English soil and could not have been legally migrated into the United States after the American Revolution. Additionally, colonial slave statutes and laws were judicially struck down by the 1772 Somerset Decision declaring parliamentary sovereignty and ruling that slavery was not “allowed and approved by the laws of this Kingdom” and could only be made lawful by a “positive law” that vested with Parliament in 1772. Furthermore, Parliament’s Declaratory Act of 1766 stripped colonial legislative assemblies of their lawmaking powers, and such powers were never reinstated.
Another stubborn fact is… Americans did not and could not lawfully own Revolutionary War-era blacks since England, no different from President Abraham Lincoln, freed an enslaved population within the country by an executive proclamation during a civil war. By agreement, the U. S. extended British rule to treaty ratification. The ending date of British rule was the sine qua non for the Treaty of Paris of 1783 and is a conclusive fact, and it makes U. S. slavery unlawful and a violation of an international treaty. Thus, if true… 500,000 Revolutionary War-era black colonists should have been “set at liberty” once the Treaty of Paris of 1783 was ratified on January 14, 1784, and not enslaved by the United States. This eviscerates two ahistorical beliefs plaguing the issue of reparations and does establish common law remedies for the horrors of U. S. slavery, not an award of equitable relief.
Moreover, the legal remedy for having been enslaved in violation of English law was being restored to status quo ante. The existence of common law remedies is plain since Parliament enacted the Declaratory Act of 1766. Just because slaveholding patriots like General George Washington claimed slavery was a lawful condition based upon “colonial statutes”… and the U. S. government went along with this assertion, did not and could not transform colonial slavery into a lawful institution under English law, nor, did it nullify due process rights under English law. The U. S. enslaved 500,000 Revolutionary War-era blacks without affording them legal, due process of law.
Thus, by accepting an equitable remedy, the common law remedy of being restored to status quo ante is abandoned or, at least, will not be given adequate consideration. At law, remedies ought not to be ignored in furtherance of designing a fair and proper restorative justice program. Fortunately, there is no bar to alleging contested facts and pursuing alternative remedies. As logic dictates… the time to sort out alternative pled remedial requests is at the end of a case. Doubtlessly, both equitable and legal remedies must be considered.
The equitable remedies are (1) compensation, (2) rehabilitation, (3) satisfaction, and (4) guarantees of non-repetition. Concerning compensation… under English common law… the one who has created the wrong has to make amends by returning the thing taken to its rightful owner. The enslavement of Revolutionary War-era blacks violated the Treaty of Paris of 1783, and it created U. S. slavery, and the U. S. has to make amends for the wrong.
Revolutionary War-era blacks were Englishmen by English law, and by terms of the Treaty of Paris, all should have been liberated. The enslavement of Revolutionary War-era blacks caused their descendants to lose their birthright, legacy and inherited wealth. And because of this wrongful Act… the U. S. government bears the responsibility for restoring the loss by providing restitution.
Concerning the culpability of America’s society… it was created on the 4th of July 1776, and it is responsible for systemic racist practices and consequences. The remedies of compensation, rehabilitation, satisfaction, and guarantees of non-repetition from the United States will serve to acknowledge this country’s societal obligation to repair the consequences of systemic racist violations.
Reparations for structural, systemic racist practices and consequences must also take the form of revealing the truth, and to this extent… symbolic reparations, such as apologies, memorials, and commemorations in the absence of showing slavery’s truthful history, would be a meaningless, cynical, and a disingenuous gesture. The combination of equitable remedies and legal remedies… will communicate to victims and society that the United States is committed to addressing the root causes of past violations and is pledging not to let it happen again. Thus, as America’s society bears the responsibility for resolving structural, systemic racist practices… victims are entitled to compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
The emancipation of Revolutionary War-era slaves on June 30, 1779, during English rule, is a stubborn fact. It was the exercise of plenary authority, and all enslaved black colonists were conferred liberty and subjecthood… even the Africans under English law.
Furthermore… by the contemplation of English law… blacks who suffered as slaves during colonial times were returned to status quo ante… they enjoyed all rights and privileges announced in the Declaration of Independence. The controlling, stubborn fact, the ending date of British rule was the sine qua non for the Treaty of Paris of 1783. This means… all 500,000 Revolutionary War-era blacks should have been “set at liberty” by America.
Ida B. Wells Center on American Exceptionalism and Restorative Justice supports H. R. 40… The Commission to Study and Develop Reparations Proposals and the ultimate implementation of a comprehensive restorative justice program. However, in furtherance thereof… a program must evidence accountability… answerability, blameworthiness, liability, and the government must fulfill the threshold promise of an honest and truthful account of events.
The stubborn facts are colonial slave statutes and laws enacted by the North American colonial assemblies were extralegal… and the Declaratory Act of 1766 legislatively repealed all colonial slave statutes and regulations in 1766… “American Laws” (colonial slave statutes and laws) were judicially struck down by the 1772 Somerset Decision affirmation of parliamentary sovereignty. Its ruling slavery was not “allowed and approved by the laws of this Kingdom.” Moreover, England exercised plenary power when it liberated Revolutionary War-era blacks in 1779, and according to the terms of the Treaty of Paris of 1783, British rule was conceded, and thus the U. S. was legally obligated to set all 500,000 Revolutionary war-era blacks free.
Doubtlessly, restorative justice programs and initiatives require the reexamination of historical events and reestablishment of the situation that existed before the harm occurred. This is an inescapable and necessary first step. This first step will help the public to fully understand the actual circumstances and facts surrounding U.S. slavery and realize that England’s Parliament repealed colonial slave statutes and laws in 1766 by legislative action, and all such laws were then judicially struck down in 1772 by the Somerset Decision, and later England liberated 500,000 Revolutionary War-era blacks, yet, they were criminally enslaved in violation of international law.
This will help stakeholders identify, articulate accurately, and define a meaningful restorative justice program or initiative and direct policymakers on the practical, legal, financial, and procedural challenges involved in designing and implementing a fair, honest, and durable program. Colonial slavery was criminal, and a product of British corruption, colonial tyranny, and slaveholding Patriots and others were complicit.
Just two generations ago, President John F. Kennedy observed that “the great enemy of the truth is very often not the lie, deliberate, contrived, and dishonest… but the myth, persistent, persuasive, and unrealistic. Too often we hold to the cliches of our forebears… we enjoy the comfort of opinion without the discomfort of thought”.
Committed to the discomfort of thought and optimistic about America’s future… Ida B. Wells Center on American Exceptionalism and Restorative Justice, in partnership with Sons and Daughters of the Enslaved, a not-for-profit public policy organization, has begun work aptly titled SEA-CHANGE. This will be a constellation of white papers, debates, lectures, software, and services developed using valued metrics through Scholarship, Engagement, and Action to challenge, disabuse, and correct historical myths and misapprehensions origins of U. S. slavery and structural racism here in the United States. Consequently, this collaborative effort’s primary focus is to catalyze reconciliation, historical integrity, and accuracy to create a civic and substantive sea change in the United States and beyond.