Colonial tyranny gave rise to the practice of hereditary slavery, an extralegal institution based upon colonial slave statutes and laws. However, the Declaratory Act of 1766 legislatively abolished colonial slave statutes and related regulations in 1766. Then in 1772… the Twelve Judges of the Court of the King’s Bench in the Somerset case judicially affirmed Parliament’s supremacy over colonial lawmaking, and it struck down colonial slave statutes and related regulations by operation of English law before the Declaration of Independence.
Moreover, on June 30, 1779… England’s Commander-in-Chief General Henry Clinton issued the Phillipsburg Proclamation, an iteration of England’s Southern Strategy of November 1775. The proclamation was a lawful exercise of executive power, and it was plenary. Under the British tradition… a royal prerogative of mercy is one of the historic royal prerogatives of the British monarchy or governor-general of the realm. It was not justiciable. Under English law… executive power could be delegated to a minister of His Majesty King George III, such as a British Commander-in-Chief General Henry Clinton.
The Phillipsburg Proclamation provided as follows:
“Whereas the enemy have adopted a practice of enrolling NEGROES among their Troops, I do hereby give notice. That all NEGROES taken in arms, or upon any military Duty, shall be purchased for the public service at a stated Price; the money to be paid to the Captors. But I do most strictly forbid any Person to sell or claim Right over any NEGROE, the property of a Rebel, who may take Refuge with any part of this Army: And I do promise to every NEGROE who shall desert the Rebel Standard, full security to follow within these Lines, any Occupation which he shall think proper. Given under my hand, at Head Quarters, PHILLIPSBURG the 30th day of June 1779”. H. CLINTON
Clinton’s proclamation of June 1779 had the force of law and did confer liberty, subjecthood, and protection unto all colonial blacks who enlisted in the King’s Army. No different than Lincoln’s Emancipation Proclamation during America’s Civil War… one of the main rationales behind this proclamation was to gain a military advantage by stimulating mass desertion of enslaved black colonists.
The Phillipsburg Proclamation extended the scope of Dunmore’s Proclamation, issued in November 1775, eight months before the Declaration of Independence. Virginia’s Governor, Lord Dunmore, granted freedom to slaves willing to serve the Royal forces. This proclamation proclaimed all slaves free, regardless of their willingness to fight for the British Crown. Further, it promised to protect all enlisted slaves from reprisals.
The Phillipsburg Proclamation aligned with the 1495 Act of Henry VII to ensure the English rule of law was faithfully executed or to offer mercy to anyone within His Majesty’s realm whom the government believed should be granted a pardon or relief. There was no legal standing for the U. S. to attack the Phillipsburg Proclamation since it was not subject to direct or collateral attack under English law. Alternatively, if the U. S. believed that Clinton’s exercise of executive, plenary power was justiciable or he did not have executive, plenary power to liberate Revolutionary War-era blacks due to the so-called American Revolution and could not lawfully liberate anyone suffering as a slave within His Majesty’s realm after the Declaration of Independence… then the U. S. should have held a due process hearing for the 500,000 Revolutionary War-era blacks as authorized by English law and therein raise and argue this exception in the Definitive Treaty of Peace in 1783 if it existed.
The Phillipsburg Proclamation lawfulness can be dispositive of the question of liberty for the Revolutionary War-era blacks after the ratification of the Definitive Treaty of Peace in 1783. This was especially true since the Declaratory Act of 1766 specially declared Parliament had full power and authority over America’s colonies. This Act affirmed parliamentary sovereignty to enact laws upon the colonies in “all cases whatsoever.” And then, in 1772, the Court of the King’s Bench in the Somerset case affirmed parliamentary sovereignty by declaring slavery was not “allowed and approved by the laws of this Kingdom” and could only be made lawful by “positive law”; a law enacted by Parliament. The Phillipsburg Proclamation reaffirmed the British Crown’s authoritative rights to delegate authoritative powers to carry out the rule of law in the colonies.
History supports anticipating the ratification of the Definitive Treaty of Peace in 1783… General George Washington and England’s General Guy Carleton met in May 1783 to discuss the logistics of the British leaving America… and the two commanders discussed the legal status and condition of former enlisted slaves under the treaty. Carleton claimed Revolutionary War-era blacks were free Englishmen protected by the treaty and as prisoners of Americans were protected by the treaty. Washington disagreed… and he tersely claimed: “colonial statutes” somehow conferred Americans with ownership of Revolutionary War-era blacks.
Washington’s claim of lawful ownership of Revolutionary War-era blacks based upon “colonial statute” was insupportable since blacks born in colonial America had subjecthood at birth under English law. According to each colonial charter… the English common law tradition of jus soli controlled… all people born in colonial North America were Englishmen by birth. And Parliament had made plain in passing the Declaratory Act of 1766 that it was this imperial legislature that had the power to enact laws on the colonies in “all cases whatsoever” and the Somerset decision affirmed parliamentary sovereignty when it ruled “American Laws” were not “positive law” and slavery was not “allowed and approved by the laws of this Kingdom.”
Under the jus soli tradition, America’s founding generation identified themselves as Englishmen and then declared themselves a sovereign nation in 1776 because of governmental tyranny. And Washington’s ownership claim could not overcome four stubborn facts: (1) colonial legislative assemblies never had plenary power to enact a hereditary slave statute or law that authorized colonial slavery and criminally violated the Sedition Act of 1661 by purporting to enact slavery statutes ad laws; (2) Parliament passed the Declaratory Act of 1766 voiding all repugnant colonial laws and asserted parliamentary sovereignty over colonial laws for itself; (3) then the Somerset decision of 1772 affirmed parliamentary sovereignty and declared slavery was not “allowed and approved by the laws of this Kingdom” and (4) the Phillipsburg Proclamation of June 30, 1779, conferred subjecthood and liberty unto Revolutionary War-era blacks in accordance to English law during the British rule of colonial America.
Carleton was unsuccessful in his attempt to disabuse Washington of his baseless ownership claim. But soon… Carleton realized an inflection point existed… and it could forestall or prevent the ratification of the treaty. But Carleton was unclear as to whether Washington understood the intricacies of the Definitive Treaty of Peace in 1783 or England’s sine qua non concerning tying British rule with the treaty’s ratification. Shrewdly, Carleton suggested to Washington that the prickly issue of liberty for Revolutionary War-era blacks and all related questions surrounding their legal status and condition should be referred to their respective governments, and he agreed.
Carleton stated that if removing blacks proved to violate the Definitive Treaty of Peace in 1783, then compensation would have to be paid by the British government. Washington agreed. However, the opposite was true: if keeping blacks proved to violate the Definitive Treaty of Peace in 1783, then compensation would have to be paid by the U. S. government. To provide for either possibility, both Carleton and Washington generated separate registries called The Book of Negroes, listing their names, ages, occupations, along with the names of their former masters, so that “the owners might eventually be paid for the slaves who were not entitled to their freedom by British Proclamation and promises.”
Then Carleton, in having announced the British policy and position on the legal status and condition of formerly enslaved blacks who were freed based upon “British Proclamation and promises” and entitled to certificates of freedom… but knowing that the treaty was yet to be ratified by U. S. Congress, he adjourned the meeting, deciding that nothing could be settled. Washington understood that Carleton was claiming freedom on behalf of all Revolutionary War-era blacks living in North America based upon the Phillipsburg Proclamation of June 30, 1779, proclaimed by British General Henry Clinton under English law.
Carleton ordered everyone under his command to “remain on duty until every man, woman, and child who wanted to leave the United States is safely moved to British soil.” However, through detention, coercion, and deception, the U. S. and its citizenry thwarted blacks’ mass exodus to the British ships. So, by November 28, 1783… when the British left America, only 3,000 black people were able to traverse America’s dragnet and secured passage on British ships to leave America… heading to Nova Scotia, the Caribbean, and England.
There are two versions of the Book of Negroes in existence; the British version held in The National Archives in Kew, London, and the U. S. version held by the National Archives and Records Administration in Washington, D. C. The U. S. made 500,000 British citizens the bedrock of its slave-based economy without granting these people due process, a right guaranteed by the Habeas Corpus Act of 1679. The mere fact that the U. S. denied Afro-Englishmen due process was a crime since it formally adopted English law. These stubborn facts do not support Washington’s ownership claim nor America’s denial of due process to 500,000 presumptive Afro-Englishmen.
The fate of the other 500,000 black people was unsettled. Still, the U. S. Congress was fully aware that Parliament’s Declaratory Act of 1766 had legislatively abolished colonial slave statutes and resolutions votes, orders, and proceedings ten years before the Declaration of Independence. Further, the Somerset decision judicially struck down colonial slave statutes and laws in 1772. Moreover, the English Bill of Rights of 1689 had long ago codified “basic rights”… in particular, liberty could not be taken away, abolished, or changed by the government in the absence of the due process of English law.
Lastly, even if colonial statutes had remained lawful and were not legislatively repealed by the Parliament of Great Britain in 1766… the stubborn fact is that the Phillipsburg Proclamation of June 1779 exercised plenary power and could (did) liberate all Revolutionary War-era slaves during British rule. The ratification of the Definitive Treaty of Peace in 1783 ended British colonial rule in May 1784. The circumstances surrounding England’s sine qua non regarding the end of British rule also changed the history when the U. S. became independent of British rule. Facts and reason reject July 4, 1776… since the U. S. Congress ratified the treaty on January 14, 1784. Then, in turn, the British signed the Definitive Treaty of Peace in 1783 on April 9, 1784, and a fully executed copy of the treaty was delivered to the U. S. on May 3, 1784, in Paris, France. Phillipsburg Proclamation resolves all potential questions regarding the legal status of the 500,000 people the U. S. enslaved in derogation of the Definitive Treaty of Peace in 1783. Thus, the Phillipsburg Proclamation had English law force, as British General Clinton exercised plenary power. All enslaved people within the erstwhile North American colonies, the self-declared United States on June 30, 1779, became “prisoners” of this civil war and entitled to liberty upon ratification. Without dispute… the U. S. government was required to substantiate their ownership claim under Stapylton.