The Second Congress formally adopted Anglo-Saxon jurisprudence and English common law. After rejecting Jefferson’s bill to adopt Roman Law, black colonials were entitled to due process of the law. However, as they knew to a legal certainty that they could not prevail legally as the colonial slave statutes and racialized laws were abolished by Parliament’s Declaratory Act of 1766 “for all purposes whatsoever” ten years earlier, they ignored the rule of law. The audacious acts of claiming that black colonials were excluded from the Declaration of Independence in 1776, refusing to grant black colonials their freedom under the Definitive Treaty of Peace in 1783 based upon “colonial statutes,” and then codifying the enslavement and exploitation of British citizens in the U. S. Constitution came to shape the political and legal fabric of the United States.
Slavery was an illegal practice on British soil, and colonial slave statutes were never legal since the colonial legislatures were bicameral and colonial assemblies failed, ignored or were unable to secure the permission of England’s King regarding colonial slave laws before the British Parliament was conferred parliamentary supremacy over the Kingdom by way of the English Bill of Rights of 1689. Additionally, Parliament’s Declaratory Act of 1766 legislatively abolished all colonial slave statutes ten years before the Declaration of Independence, and as the Somerset decision ruled slavery was not “allowed and approved by the laws of this Kingdom” four years… before the Declaration of Independence… the dispositive thesis is revealed… before the founding of our Nation, everyone held in bondage had actually been confirmed by Great Britain’s highest court to possess the full rights of English citizenship and racism in colonial America did shape the public policy, as it caused black Englishmen to be excluded from the Declaration of Independence which is America’s foundational document. Later the U. S. Constitution codified the enslavement of more than 500,000 black British citizens without affording them the due process of law.
These 500,000 black Englishmen were entitled to due process after the Revolution ended, according to the English criminal assault case of Rex v. Stapylton (K.B. 1771), where a white defendant proffered a slave ownership defense. In this case, Robert Stapylton had attempted to send his alleged slave, Thomas Lewis, back to the colonies. The jury concluded that there was no evidence that Stapylton had property in Lewis. Still, during the trial, Lord Chief Justice Mansfield stated that Stapylton’s defense was problematic under the English rule of law and had nudged the defendant to settle with the black victim, explaining the exacting standard of proof facing the defendant… “being black will not prove the property.” However, Stapylton was unpersuaded, the trial proceeded, and he was found guilty of the crime of assault.
Furthermore, Stapylton was controlling precedent for resolving the question of whether black colonials were English citizens covered by the Declaration of Independence and the treaty dispute by and between British General Guy Carleton and General George Washington… whether black colonials were British citizens and entitled to be “set at liberty” per the Definitive Treaty of Peace 1783 has astounding implications for U. S. constitutionalism. The negotiations had resulted in a stalemate and an agreement between the two negotiators to keep separate registries called “Book of Negroes” in May 1783… and to resolve the legal question in the future, did black colonials who suffered as slaves legally belong to Americans during British rule.
Doubtlessly, slavery was a criminal enterprise. The stubborn core facts are that the Founding Generation had the burden of proving their claim that black colonials were excluded from the Declaration of Independence. Rex v. Stapylton (K. B. 1771) (“being black will not prove the property.”) British Parliament abolished slavery on its soil by a General Charter of Emancipation in 1381, and as Parliament abolished colonial slave statutes and racialized laws by the Declaratory Act of 1766, they could never sustain their burden of proof.
Conservatives know that the evidence proving racism shaped America’s public policy regarding the Declaration of Independence is compelling, probative, and insuperable. They fear that this irrefutable knowledge will be discovered and undermine U. S. constitutionalism and that it will have existential consequences upon America’s preeminence, the legacies of its slave holding heroes, politicians, and notions of American exceptionalism and our civil religion, and they want to prevent people from coming into that knowledge.
The Enslaved Were Free Englishmen According to Rule of Law
The colonies in British America did not have a separate and distinct constitution and judicial system from the Kingdom of Great Britain. Instead… by colonial charter… the American colonies were bound to the English rule of law, and slavery was a criminal act. The colony of Virginia remained bound by the colonial charter to adhere to the English rule of law at all times during British colonial rule.
History supports… although disembarking the Dutch privateer ship White Lion in chains in 1619, the first 19 or 20 kidnapped Africans arriving on Virginia’s shores at Point Comfort were indentured servants, not enslaved people, and this was not luck… instead, slavery on British soil was prohibited by the General Charter of Emancipation of 1381, which was never abolished and remained the English law of the land during colonial times.
Further, none of the colonial assemblies had the authority to enact a “positive law” to legalize slavery. Such power resided exclusively with the British Parliament. Purported colonial statutes and racialized laws, proceedings, and resolutions that enslaved kidnapped Africans and colonial-born people of African ancestry at birth placed people below the rule of English law and denied them due process of law, violated Parliament’s pre-colonial Magna Carta of 1215, clause 39, the General Charter of Emancipation in 1381, the Royal Assent by Commission Act of 1541, the Sedition Act of 1661, and Parliament’s Habeas Corpus Act of 1679.
Dr. Stewart observed…”In the beginning, way back in 1619, the first nineteen Africans arriving on the shores of Virginia were understood to have had the status of indentured servants in accordance with English common law. In short, they possessed the same “rights of Englishmen” as all other Virginians. For this reason the subsequent “legalization” of slavery by colonial legislatures was anything but that. Instead, as English common law decreed, those enslaved by white colonists throughout the 17th and 18th centuries actually retained their rights as citizens even as “chattel property.” With respect to English legal precedent, they were, by common law definition, as free as those who bought and sold them.”
Fidelity to England’s Magna Carta of 1215, clause 39, the General Charter of Emancipation of 1381 prohibiting slavery on British soil and upholding its creed of being “a nation of laws, not men” was why the captured Africans in 1619 joined the ranks of indentured servants with the one thousand others in British colonial America. However, and to be sure, indentured servitude was deadly and challenging work, and many people died before their terms were over. But indentured servitude was temporary, with a beginning and an end.
After indentured servitude ended, captured Africans, no different from other immigrants, became British citizens when they completed their term of indenture. They were then eligible for headrights for land in the new colony in the Chesapeake Bay region, where indentured servants were more common. If born in colonial America, their children were free-born English citizens under the English rule of law and each colonial charter. Everyone was subject to the rule of English law without any attending racial bias.
For example, Anthony Johnson was one of the first Africans to arrive in Virginia. After serving as an indentured servant until 1635, he became a British citizen and a significant property owner in Virginia. He owned two hundred and fifty acres of fertile land and held five indentured contracts by 1651. Johnson married an African named Isabelle. She gave birth to their son William in 1623 or 1624… and he was the first recorded Afro-Englishman born in the British colonies in America.
In 1652… “an unfortunate fire” caused “great losses” for Johnson. He applied to the colonial court for tax relief. Under Virginia’s 1645 Taxation Act… “All negro men and women and all other men from the age of 16 to 60 shall be tithable.” And without regard to Johnson’s African origin, the colonial court not only reduced his taxes, evidencing that Africans who became free had status and rights under English common law in early colonial America, but on February 28, 1652, it exempted Johnson’s wife, and his two daughters from paying taxes “during their natural lives.” The colonial court’s tax relief grant to Johnson’s family gave Johnson’s family members the same social status as white women, who were not taxed in Virginia.
Then in 1654, in a civil case entitled Anthony Johnson versus Robert Parker… Johnson prevailed in Virginia’s colonial court against a white colonial. This replevin case involved John Casor, a black indentured servant whose contract was owned by Johnson… but he complained that his indentured contract had expired seven years earlier and was being held illegally. Parker intervened on behalf of Casor and cajoled Johnson into freeing him since keeping an indentured servant beyond his termination date was considered a serious matter, and a person could be severely punished for such an offense, as it violated English law. However, Johnson, who was illiterate, was tricked… and he brought a lawsuit after discovering that Casor had signed a term of indenture to Parker, and he sought the return of Casor.
Initially, the court ruled in favor of Parker… but Johnson appealed, and in 1655, the colonial court reversed its ruling and found that Johnson still “owned” Casor under England’s common law. Parker was ordered to return Casor and pay court fees. In sustaining Johnson’s claim against Parker… the colonial court in Virginia established that black colonials and/or people born in Africa once becoming a free citizen could bring legal matters in colonial courts and receive a fair hearing during early colonial times.
Without much dispute, the captured African Johnson becoming a British citizen after indentured servitude, then a significant property owner in Virginia, who owned two-hundred and fifty acres of fertile land and held five indentured contracts by 1651; him securing tax relief in 1652 and the favorable disposition of his 1654 civil case against a white colonist to recover ownership of an indentured servant under contract are significant because they do establish a treatment and a socio status accorded to people of African ancestry who became English citizens after indentured servitude in early colonial America… whose treatment and status that was practically and theoretically incompatible with a system of racial repression.
The first court-reported case of slavery in the American colonies was the African named John Punch in the year 1640, whose punishment for the crime of escaping his indentured servant contract was a sentence of slavery for the remainder of his life. Punch and two white men… a Scotsman named James Gregory and a Dutchman named Victor stood trial in 1640 for the crime of running away. All three men were contracted to a Virginian named Hugh Gwyn, and each performed similar tasks. They felt so exploited, they were willing to take risks to pursue freedom and run away.
Though fleeing away from their master as a group… the punishment of the runaways differed, as the white men’s terms were only extended by four years, but “… the third being a Negro named John Punch” was sentenced to “serve his said master or his assigns for the time of his natural life.” Edgar A. Toppin, in A Biographical History of Blacks Since 1528, writes: “Thus, the black man John Punch became a slave, unlike two white indentured servants who merely had to serve a longer-term.” England had abolished slavery by a general charter of emancipation in 1381, and England’s common law announced in Cartwright’s Case (1569), which held that a man must be freed, as “that England was too pure an air for a slave to breathe it” and Virginia’s colonial charter binding it to common law prohibiting slavery on English soil.
Punch’s sentence was unlawful, and this July 9, 1640 verdict gave rise to targeted repression of people of African ancestry within America’s courts. Thus, John Punch was “Negro Zero” regarding documented slavery and disparate treatment of blacks in colonial America.
The unique species of colonial tyranny called slavery spawned a culture of hooliganism, white supremacy within colonial America, and likewise, allowing white colonials to operate above English law… had a natural and foreseeable consequence of creating an American ethos that English law and traditional rules did not bind colonial Americans. This ethos was especially coveted when it came to them dealing with their extralegal slavery practices. Thus, after generations of salutary neglect by the British imperial government and despite the enactment of the English Bill of Rights of 1689 that conferred fundamental liberties unto all English citizens… colonial Americans were fully committed to a slavocracy by the time His Majesty’s King’s Bench rebuked slavery in the Kingdom by way of the Somerset decision in 1772.
What people do is not the standard for establishing what was lawful during colonial times. Instead… colonial America was a “nation of laws, not men,” and the standard for establishing what was lawful was promulgated laws, defined within legal and constitutional limits. Colonial slave statutes and laws never met that objective standard.
Further, the notion that slavery was a legal practice during colonial times, in the absence of promulgated laws evidence circular, flawed reasoning as promulgated laws define what is lawful. To conclude that an extralegal practice… based upon custom and tradition is what defines lawful is meritless. Yet, that has been America’s enduring defense of black slavery and black colonials being excluded from the Declaration of Independence and being reduced to slaves here in the United States after the ratification of the Definitive Treaty of Peace in 1783.
The English Civil Wars began in 1642… fighting that took place in the British Isles between supporters of the monarchy of King Charles I and his successor Charles II and opposing groups in each of the realms. The first was settled with Oliver Cromwell’s victory for Parliamentary forces at the 1645 Battle of Naseby. The second phase ended in December 1648 when Charles I was arrested, charged with treason, and then was beheaded in 1649. Then in 1651, the British monarchy was suspended until it was reinstated as a constitutional monarchy in 1661.
During the English civil war period… many Englishmen took advantage of the situation. For example, communities in England seized timber and other resources on the sequestered estates of Royalists, Catholics, the royal family’s estates, and the church hierarchy. While 3,000 miles away in the American colonies… the Americans took advantage of this period of civil unrest by creating a species of colonial tyranny… slavery.
Under Virginia’s colonial charter… no one was above or below the English rule of law. And looking back at early colonial times, one must be struck by what can only be called… the equality of oppression. Not the least among the things that framed this period of colonial history was that the British imperial government and its installed colonial governors saw little or no distinction between black and white colonials, whether indentured servants, colonists or its gentry planter class… all were held in equal contempt.
Further, the rule of English law throughout colonial America recognized British citizenship at birth under partus sequitur patrem. The father’s condition established the legal status of a person born in colonial America. This was the law in colonial America. It was reaffirmed in a 1656 case brought by Elizabeth Key, the first woman of African ancestry in the American colonies to sue for her freedom from slavery and win.
Key won her freedom and that of her infant son on July 21, 1656, in the colony of Virginia, and she based her case on the fact that she was born in the colony of Virginia… her father was an Englishmen, and that she was thereby an English citizen by law. However, the Key decision proved to be the impetus for Virginia’s legislative assembly endeavoring to change the descent law in Virginia… and they purported to do so using a corrupt criminal scheme that began when Virginia’s legislative assembly, the House of Burgesses, purported to legalize slavery in 1661, without securing the King’s permission. Then, the following year, in 1662, Virginia’s legislative assembly purported to enact a hereditary slave law called partus sequitur ventrem, commonly known as Virginia’s hereditary slave statute.
Virginia’s hereditary slave statute 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.”
Virginia’s slave statute in 1661 and the hereditary slave statute the following year in 1662 were fatally defective because they did not have the King’s permission. They were not lawfully promulgated laws because they violated the Royal Assent by Commission Act of 1541, Virginia’s colonial charter, and the Sedition Act of 1661 which criminalized a legislature’s mere imputation of having “a legislative power without the King.” Moreover, in the absence of the King’s permission… the slave statutes were legal nullities by operation of law, and Virginia’s colonial governor William Berkeley should have vetoed both slave statutes… but he was conveniently out of Virginia and in England when Virginia’s legislative assembly passed the slave laws. Still, when Berkeley returned to Virginia in December 1662… he failed to veto the defective colonial slave statutes. He did not prevent its enactment within the colony of Virginia since the criminal conspirators paid the Governor’s back salary.
Graft and corruption of colonial government facilitated colonial slavery. Due to the profitability of hereditary slavery… the practice thrived in the colony of Virginia and was copied by other British colonies. Virginia’s hereditary slave practice became endemic throughout British North America, and the ideology of white supremacy was integral to its growth. Before such time… no European regarded themselves as “white” but instead defined their race, ancestry, or ethnicity in terms of their nationality.
In 1761… fifteen years before the United States declared itself as a new nation with the Declaration, white colonials stretching from present-day Maine to Georgia proclaimed themselves loyal British citizens who celebrated the coronation of King George III. English citizens in colonial America were heirs to the 13th Century English Magna Carta of 1215, which established the principles that no one is above the law (not even the King) and that no one can take away certain rights and the General Charter of Emancipation of 1381 that prohibited slavery on British soil. So, in 1766, when Parliament abolished all colonial slave statutes and racialized laws through the Declaratory Act of 1766 “for all purposes whatsoever,” ten years before the emergence of the United States and as the colonial Americans conceded to the power and authority of Parliament to abolish colonial statutes and laws in 1776… this compressed and defined the period of colonial rule to scrutinize.
It is significant, and a dispositive fact that revisionist historians cannot substantiate that the Founding Generation met their burden of proving that black colonials were excluded from the Declaration of Independence, nor have historians ever identified any legislation enacted by the British Parliament that rescinded the Declaratory Act of 1766 or otherwise reinstated colonial slave statutes and racialized laws between 1766 and 1776 and, in fact, the fifty-six patriots’ indictment of England’s King George III’s governance in the Declaration of Independence, grievance one specifically stated… “He has refused his Assent to Laws, the most wholesome and necessary for the public good,” and grievance twenty-one stated displeasure “For taking our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments” constitutes dispositive proof.
Further, these listed grievances being affixed to the Declaration of Independence are especially significant as they establish the rebuttable presumption that the Second Congress knew colonial slavery had been abolished in 1766… and knew each colonial assembly lacked the power and authority to enact a colonial slave statute or a racialized law without the King’s permission since the colonial Legislature was bicameral before they declared the United States an independent nation on July 4, 1776.
The Founding Generation of fifty-six delegates who signed the Declaration of Independence had no lawful authority, absolute or imagined, to claim and never substantiated its position that black colonial Englishmen living in colonial America were excluded from the Declaration of Independence, America’s founding document. Thus, under the rule of English law, formally adopted by America’s Second Congress as our jurisprudence in July 1776…and as heirs to the 13th Century English Magna Carta of 1215, which established the principles that no one is above the law, not even the King and no one can be deprived of their liberty rights without due process of law… the Founding Generation had the burden of proving all-black Englishmen were excluded under the Declaration of Independence and once the Definitive Treaty of Peace 1783 was ratified on January 14, 1784… all 500,000 black English citizens should have been “set at liberty.” Rex v. Stapylton (K. B. 1771) (“being black will not prove the property.”)
Instead, the Founding Generation made black Englishmen the human property of former white colonials, now Americans, upon the bare claim that this nation of British citizens had been enslaved people under British rule based upon “colonial statutes.” They failed to confer unto them the due process of English law, and the unproven claim that black colonials were excluded under the Declaration of Independence became public policy. It shaped the legal fabric of the United States, and it was codified in the U. S. Constitution and subsequent laws.
Yet U. S. history is taught and popularly understood through the biographies of its great men, who are presented and canonized as either heroic or tragic figures in a global struggle for human freedom by historians. But, historian Andrew Burstein noted that a “biography is never a faithful record. It is a construction, a clandestine effort to refashion memory, to create a new tradition, or sanction yet another myth about what is past.” And just two generations ago, President John F. Kennedy observed “the great enemy of truth is very often not the lie; persistent, persuasive, and unrealistic; too often we hold to the clichés of our forebears… we enjoy the comfort of opinion without the discomfort of thought.”
Further, in the book Fallen Founder: The Life of Aaron Burr, Nancy Isenberg observed, “these were our founders, imperfect men in a less than perfect nation, grasping at opportunities. That they did good for their country is understood and worth our celebration; that they were also jealous, resentful, self-protective, and, covetous politicians should be no less a part of their collective biography. What separates history from myth is that history takes in the whole picture, whereas myth averts our eyes from the truth when it turns men into heroes and gods.” And none have our eyes been more averted way from than America’s slaveholding Founding Fathers from the southern colonies, such as the Virginians George Washington, Thomas Jefferson, James Madison, and others.
Theodore W. Allen, in his seminal two-volume study The Invention of the White Race, posited that the American laboring class of white colonists within British North America showed little interest in “white identity” during the early 1760s and therefore could not see themselves as being superior to black colonials before England instituted the system of race-based privileges towards the end of the 17th century that post-dates hereditary slave statutes.
Allen explains how, in the wake of Bacon’s Rebellion in 1676… the “white race” was invented as a ruling class social control formation by Virginia’s legislative assembly that enacted racialized statutes, laws, and regulations against free black colonials. However, Virginia’s legislative assembly did not bother to obtain the King’s permission, as required by the rule of English law and Virginia’s colonial charter. Further, Allen observed that his research of Virginia’s colonial records did not reveal an official use of the word “white,” even as a token of social status before 1691. This was not a matter of semantics… he also found that the “white race” as we know it… was not, and could not, have been functioning in early Virginia.
Contributing to the rise of the “white race” was the fact that colonial society was based upon European values… caste system, mores, and traditions. Within this system and traditions… darker-skinned people were universally stigmatized as laborers and servants, as it was a characteristic of most who worked outside in the sun and the elements. And with a population explosion of black colonials due to the hereditary slavery scheme in colonial America… those biases and European stereotypes were seamlessly adopted to support an informal race-based caste hierarchy that became entrenched throughout colonial America’s social structures and institutions.
Hereditary slavery, enslaving colonial-born people of African ancestry at birth, was a criminal practice. From inception… colonial slavery was anathema to the English rule of law, and it created an ethos of hooliganism, white privilege, and colonial tyranny. The colonial assemblies during the 1660s failed to secure the English King’s permission upon their slave statutes. It violated the Royal Assent by Commission Act of 1541, the colonial charters, and the Sedition Act of 1661. Further, by the end of the 1680s, England’s King could not give his permission to enact a “positive law” as the unbridled power of the Crown was changed to a constitutional monarchy. The legislative supremacy of Parliament was announced in the English Bill of Rights of 1689. Thus, colonial assemblies within the American colonies were legislatively abolished in 1689.
The English Bill of Rights of 1689 was an act of Parliament that limited the power of the Crown and guaranteed certain rights to British citizens. The English Bill of Rights incorporated the growing conviction that although some people may inherit privileges, all British citizens enjoyed fundamental rights… in particular “liberty,” that could not be taken away, abolished, or interfered with even by the King. He, too, was also subject to and not above the law. Ex post facto legislation retroactively changed the legal consequences of actions committed before enacting the law, thus, all earlier hereditary slave statutes and laws were rendered legal nullities in 1689.
Then soon after, Parliament passed the English Bill of Rights of 1689 that declared fundamental, unalienable rights and liberties of all British citizens and conferred supreme legislative power to the British Parliament… the thought in colonial America became that the three distinct classes of blacks… free negroes (one that was recognized as being free)… enslaved colonial-born blacks (one that was a British citizen by birth) and captured Africans had to be conflated, as the notion of the existence of a distinct class of blacks called “free negroes,” recognized by the English rule of law was too great of a risk to their business interest and freedom.
Further, in 1702, Lord Chief Justice John Holt of England’s Court of the King’s Bench ruled in Smith v. Brown & Cooper… “As soon as a Negro comes to England, he is free; One may be a villain in England… but not a slave.” This judicial decision was binding throughout the Kingdom, including the American colonies.
The narrative that being black equals being a slave conflated the varied classification of blacks living in colonial America. Such being the case, the colonial elite and those who profited from slavery created the narrative that being black—equal to being an enslaved person, and none were protected by the English rule of law. They did so to protect their wealth, political power, and liberty since they knew being a slave, if born in colonial America, was a criminal condition and that the then newly enacted English Bill of Rights of 1689 inured benefits and legal rights unto colonial-born blacks. However… hereditary slavery continued to flourish due to corrupt colonial governors, graft, and hooliganism.
Poor white colonials were conferred “white privilege,” and they became the unofficial enforcement agency within colonial America.” They proved to be the perfect group for subverting the legal status of colonial-born blacks and other “free negroes.” Further, black colonials and Africans were defined in separate population groups, although they lived together throughout the 13 British colonies by the 18th century. But, the New York Slave Revolt of 1712, where 29 white lives were lost, caused the colonial assemblies to restrict Africans’ importation in favor of colonial-born blacks, who they saw as being less aggressive and more docile.
Yet, soon the colonies of Virginia, Georgia, South Carolina, North Carolina, and Maryland became exclusively reliant upon exploiting enslaved colonial-born blacks. The population of black Englishmen exceeded white colonials in some regions of the southern colonies by two to one. Thus, when the United States declared itself independent in July 1776… most black people living in colonial America were British citizens by the English rule of law. This accounted for the dramatic rise in the natural-born black population, as ninety percent of all so-called slaves were then colonially born by the summer of 1776.
Hereditary slavery was a criminal scheme. People of African ancestry born in colonial America were robbed of their British citizenship, humanity, and protected birthrights authorized by the English rule of law. There was widespread colonial tyranny targeted at black colonials, which violated England’s Magna Carta of 1215 and the English Bill of Rights of 1689.
In 1766, the British imperial government exercised parliamentary sovereignty to restore law and order within colonial America by enacting the American Colonies Act of 1766, commonly referred to as Parliament’s Declaratory Act of 1766. The constitutional state of affairs within colonial America was recalibrated, as this Act of Parliament abolished all colonial statutes, laws, resolutions, votes, orders, proceedings, and regulations that denied or challenged ”the power and authority of the Parliament of Great Britain, to make laws and statutes” for the American colonies and restored colonial legislative affairs to status quo ante according to each colonial charter, and it effectively dissolved all colonial assemblies within colonial America.
The legislative actions of the British Parliament under parliamentary sovereignty rendered all colonial statutes, laws, proceedings, and regulations null and avoided, and it 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, and it eviscerated the tyranny of colonial assemblies and victims of hereditary slavery were returned to status quo ante, and their British citizenship was fully restored; thus, hereditary slavery became a criminal act against another British citizen by the English rule of law in 1766.
Doubtlessly… colonial slave statutes questioned Parliament’s power and authority to enact the Royal Assent by Commission Act of 1541, that required the King’s permission unto all statutes and laws enacted in the Kingdom, and the Sedition Act of 1661 that criminalized a legislature’s mere imputation of having “a legislative power without the King.” Thus, the existence of multiple criminal violations of English law and the crime of treason being fastened to a legislature purporting to enact statutes and laws in the Kingdom without the King’s permission might best explain why the colonial assemblymen in British America had a quite muted response to Parliament’s Declaratory Act of 1766 that abolished all colonial statutes “in all cases whatsoever” and dissolved colonial assemblies.
The British imperial government had the legal authority to abolish colonial statutes and dissolve colonial assemblies for a good reason or no reason. All colonial slave statutes and racialized laws, resolutions, votes, orders, proceedings, and regulations became legal nullities under the British rule of law because of parliamentary sovereignty. But colonial slave statutes questioned Parliament’s enactment of the 1350 Act that conferred citizenship and privileges unto colonial-born blacks “for those who are born in Parts beyond the Seas” and the General Charter of Emancipation of 1381 that abolished slavery on British soil.
Yet another supportable reason did exist for Parliament to abolish colonial statutes and laws… and perhaps the most potent reason of all was that the Kingdom of Great Britain had become a unitary nation, and all legislative power was vested in the Parliament of Great Britain. And significantly, most colonials in America, such as the Virginian lawyer John Randolph, whose father was Sir John Randolph, the only Virginian to be knighted, who stated in 1766 that the Declaratory Act merely made explicitly the known and accepted constitutional state of colonial affairs is the best reason that the abolishment of colonial statutes and laws in the Act did not raise a ruckus in 1766.
Thomas Jefferson’s lamentations concerning Parliament’s Declaratory Act of 1766 and the British imperial government were…
“By one Act, they have suspended powers of American legislature and by another have declared they may legislate for us themselves in all cases whatsoever. These two acts alone form a basis broad enough whereon to erect a despotism of unlimited extent.”
History supports… six years after the Declaratory Act of 1766… the British highest court… the Court of the King’s Bench in the Somerset case determined in 1772… slavery was unconstitutional and not “allowed and approved by the laws of this Kingdom.” Further, the High court ruled that slavery could only be made legal through a “positive law,” a power that only resided with the British Parliament. Thus, under Somerset, colonial assemblies never had the power or authority to enact a lawful slave statute since they could not enact a positive law during colonial times.
Accordingly, by the 4th of July in the year 1776… Jefferson, the author of the Declaration of Independence, and the other Founding Fathers could not credibly claim ownership over enslaved colonial born blacks as they were English citizens by birth, nor could they credibly support a claim that black colonials were excluded from the Declaration of Independence since… slavery in colonial America was prohibited under Parliament’s General Charter of Emancipation in 1381. Also, they knew those colonial statutes and racialized laws enacted without the King’s permission were legal nullities under the Royal Assent by Commission Act of 1541 and were crimes under the Sedition Act of 1661.
Further, each of the 56 signatories to the Declaration knew (or should have known) to a legal certainty that the British imperial government had abolished colonial slave statutes in 1766. The British highest court, the Court of the King’s Bench, had declared slavery was unconstitutional within the Kingdom in 1772… thereby, all enslaved black colonials possessed the full rights of English citizenship in 1776, as a matter of the English rule of law.
The Somerset Decision transformed all recalcitrant slave holders in colonial America into criminals under the English rule of law. Having been in criminal partnership with officials of the British colonial government and unwilling to abide by the rule of law, they committed themselves to protecting their criminal enterprise. They formed the First Continental Congress, comprising twelve of the thirteen British colonies, as the colony of Georgia declined to participate because it needed British military support against Native American attacks. The assembly met at Carpenters’ Hall in Philadelphia, Pennsylvania, in September and October of 1774, and it had 56 delegates. Amongst the delegates were George Washington, Patrick Henry, and John Adams.
The delegates from the colony of Virginia owed their financial security to slavery, and they became leaders of the First Continental Congress. Their pro-slavery, racist views and interests defined and sculpted America’s resulting public reasoning for opposition to the British imperial government. However, the coming together of the Founding Generation created an uneasy alliance of divergent ideologues. As Edmund S. Morgan, in his book American Slavery, American Freedom: The Ordeal of Colonial Virginia, observed, “[T]he men who came together to found the independent United States, dedicated to freedom and equality, either held slaves or were willing to join hands with those who did… None of them felt entirely comfortable about the fact, but neither did they feel responsible for it. Most of them had inherited both their slaves and their attachment to freedom from an earlier generation, and they knew the two were not unconnected.”
Thus, America’s slave-holding Founding Fathers, such as George Washington, Thomas Jefferson, James Madison, and others, had the burden of proving ownership of black colonials. Rex v. Stapylton (K. B. 1771) (“being black will not prove the property.”) Colonial-born black people such as Oney Judge or the child Sally Hemings were both born in Virginia under the English rule of law in 1773, were free-born English citizens. Thus, when independence was declared from the Kingdom of Great Britain in July 1776, all colonial-born blacks were protected and included.