In the Atlantic in 2014… journalist and writer Ta-Nehisi Coates wrote an essay titled The Case for Reparations. He challenged each and everyone to consider that “To celebrate freedom and democracy while forgetting America’s origins in a slavery economy was patriotism a la carte”… “If Thomas Jefferson’s genius matters, then so do his taking of Sally Hemings’ body. If George Washington crossing the Delaware matters, so must his ruthless pursuit of the runagate Oney Judge”. Jefferson, a United States Envoy and Minister to France, brought fourteen-year-old Sally Hemings to Paris in 1787. He fathered a child with this young black girl… and Washington claimed ownership of Oney Judge… both were legally free Afro-English people who were born in colonial Virginia in 1773… who should have been “set at liberty” under the Definitive Treaty of Peace in 1783… thusly, the behavior of America’s first and third president of the United States must also matter.
Sally Hemings was born in Charles City County, Virginia, in 1773. Hemings was the biological daughter of white Englishman John Wayles, Thomas Jefferson’s father-in-law. History supports, Hemings came to Jefferson’s Monticello home as an infant as part of Martha Jefferson’s inheritance from her father, John Wayles. Concerning Oney Judge, she was born in Mount Vernon, Virginia, in 1773. Judge was the biological daughter of white Englishman Andrew Judge, George Washington’s tailor.
On June 30, 1779… England’s General Henry Clinton freed all enslaved people living within the North American colonies, including Hemings and Judge, then six-year-old girls whose fathers were white Englishmen. Significantly, Virginia’s charter of 1606 provided in relevant part the following:
“Also we do, for Us, our Heirs, and Successors, DECLARE, by these Presents, that all and every the Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purpose, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.”
Hemings and Judge were English citizens by birth under jus soli. Colonial-born black colonists such as Hemings and Judge, whose fathers were white Englishmen, were deemed “children of the King,” protected by a 1350 “statute for those who are born in Parts beyond Sea” as both of their fathers were white Englishmen. This Act protected Heming and Judge’s ancestral English common law birthrights since their fathers were white Englishmen.
This 1350 Act, when combined with Parliament’s Declaratory Act of 1766 that legislatively abolished Virginia’s hereditary slave statutes and related regulations, withdrew colonial legislative lawmaking powers and declared parliamentary sovereignty over colonial slave laws and the Somerset decision in 1772 that affirmed parliamentary sovereignty by ruling “American Laws” were not “positive law” and colonial slave statutes were not “allowed and approved by the laws of this Kingdom” rendered Jefferson and Washington’s putative ownership interest in these Virginia-born English people void ab initio… well before the American Revolutionary War started. And although the Definitive Treaty of Peace in 1783, which was ratified on January 14, 1784, and the U. S. agreed that all “prisoners” like Hemings and Judge were to be “set at liberty,”… but they were not freed.
The mixed-race Hemings and Judge were freeborn Englishmen by English law in 1773… as it was the year after the Somerset decision affirmed parliamentary sovereignty, ruled colonial slave statutes, and related regulations were not “positive law.” Slavery was not “allowed and approved by the laws of this Kingdom.” Both women’s fathers were white Englishmen. English law of jus soli made Hemings and Judge… British subjects by birth in 1773… not slaves, and they were protected under English law. This was also supported by the 1656 colonial case involving a mixed-race woman named Elizabeth Key, who was granted her freedom because her father was a white Englishman.
Doubly, the Declaratory Act of 1766 legislatively abolished all of Virginia’s hereditary slave statutes and related regulations because such “proceedings” specifically challenged “the power and authority of the parliament of Great Britain, to make laws and statutes” by way of Virginia’s colonial charter and the English Bill of Rights of 1689.
How Jefferson and Washington treated Hemings and Judge is even a more compelling indictment against these men since the U. S. Congress adopted English law after the Declaration of Independence in July 1776… so both Jefferson and Washington were continuously bound to English law and are legal imputed to know the law of jus soli and controlling legal precedent.
Doubtlessly, the British had attempted to give illustrative slaveholding patriots like Jefferson and Washington a safe harbor to ignore the legal consequence of the Declaratory Act of 1766, as well as the Somerset decision in 1772. Moreover, Congress attempted to ignore the clear language in the Definitive Treaty of Peace in 1783 concerning releasing “prisoners,” … but as John Adams had warned all…” facts are stubborn” and “cannot alter the state of facts and evidence.” Under English law… the Declaratory Act of 1766 and the Somerset decision that affirmed parliamentary sovereignty were dispositive of the legal question of Hemings and Judge’s British subjecthood and entitlement to liberty upon the ratification of the Definitive Treaty of Peace in 1783 in the year 1784. These Afro-Englishwomen should have been “set at liberty.” The American Revolution did not legitimate the criminal enslavement of these mixed-race women that began due to colonial tyranny and could not change or alter the English rule of law.
Jefferson and Washington were engaged in criminal behavior under English law in the year 1773. Ignorance of the law is no excuse for breaking the law, and they are attributed to have known that their ownership claims of Hemings and Judge were criminal and without legal merit. Such being the case, it is understandable that the U. S. never addressed the question of legal status and condition of Afro-English people like Hemings and Judge or the liberty question posed by the Definitive Treaty of Peace in 1783 before a court of competent jurisdiction.
Further, Jefferson, Washington, and other slaveholding Americans did not have a viable ownership claim since 90 percent of Revolutionary War-era blacks were born in colonial America, just like Hemings and Judge. Jefferson and Washington were enlightened and informed men of the 18th century… learned in law and politics who knew that each was exploiting uneducated and uninformed black people who were legally free.
Yet, admirers of America’s founding generation are still willing to give them all free passes. They quickly point out that Washington, for his part, treated his slaves well… did not break-up families and emancipated them in his will. And Jefferson contemplated the emancipation of his slaves as well… but sadly, Jefferson was too much in debt to do so at his death. However, core to all free passes is the false and dehumanizing notion that the black people these men lorded over were slaves… but in reality… they were freeborn Englishmen who were criminally enslaved in derogation of English and international law. Thus, Jefferson and Washington are not entitled to a free pass since an American president’s behavior does matter and continues to matter.