During the English Civil Wars beginning in the early 1640s, and in violation of the English rule of law and their colonial charters… colonial assemblies began enacting slave statutes and racialized laws. The colonial slave statutes and their racialized laws were not lawfully promulgated since the colonial assemblies failed to secure the formal approval of England’s King under the Royal Assent by Commission Act of 1541, as well as required by each colonial charter and as the original colonial legislators, in failing to secure the King’s formal approval had committed a serious crime in violation of the Sedition Act of 1661 it made these colonial slave statutes and laws legal nullities under the English rule of law.
The textbook definitions of the British imperial state and the doctrine of parliamentary sovereignty are explained in A. V. Dicey’s book… Introduction to the Law of the Constitution 1885: “Unitarianism, in short, means the concentration of the strength of the State in the hands of one visible sovereign power, be that Parliament or Czar,” and the British Parliament was conferred this visible sovereign power in 1689, which occurred three generations before America’s Declaration of Independence… when the Kingdom of Great Britain became a unitary state with the English Bill of Rights of 1689. The Bill of Rights replaced the unbridled power of the Crown with parliamentary sovereignty.
Parliament Voided Repugnant Colonial Statutes
The English Bill of Rights of 1689 had the legal effect and consequence of abolishing the bicameral colonial Legislatures within America as a matter of English law since England’s King was stripped of his power and authority to approve colonial statutes and laws within the Kingdom and Parliament was conferred parliamentary sovereignty. Then the British Parliament voided all repugnant colonial statutes and laws with the Declaratory Act of 1766 “for all purposes whatsoever,” and asserted and exercised the right of Parliament to enact laws for the American colonies, “in all cases whatsoever.”
The British imperial government’s exercise of parliamentary sovereignty in 1766 destroyed the claim or legal defense that colonial slave masters were operating within the contours of colonial laws, even if the King had previously approved the practice of hereditary slavery or if they claimed tacit approval of slavery by the Crown.
And it is dispositive proof of colonial slavery’s unlawfulness since colonial America’s slave statutes and racialized laws were not carved out and Parliament did not deem such statutes and laws as being exempt from the Declaratory Act of 1766. The legislation of the British Parliament in 1766 recalibrated the British imperial government’s relationship with the American colonies by nullifying inconsistent and repugnant colonial statutes, laws, resolutions, votes, orders, proceedings, and racialized regulations that denied or challenged “the power and authority the parliament of Great Britain, to make laws and statutes,” and restored colonial legislative affairs to status quo ante.
The British imperial government extended an olive branch to the slaveholding Americans by delivering the Somerset decision orally, obliquely, and informally directing its colonial governors in America to disregard the precedential effect of the Somerset decision to prevent destabilizing the American colonies. However, the political decisions of the British imperial government did not and could not change the legal consequence of the Somerset decision.
The British imperial government’s olive branch to colonial America was well-received. Americans in the southern colonies came to argue that the Somerset decision only prohibited the forcible removal of slaves from England and competing interpretations took on a life of its own according to William W. Wiecek in his seminal legal writing The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca, N.Y.: Cornell University Press, 1977). Yet, the broader reading of the Somerset decision, supported by Forbes v. Cochrane (1824) 3 Dow & Ry KB 679 at 742, is that slavery in the Kingdom, as a concept, has no recognition in English law having never been established in the common law or by statute making it illegal.
Enslavers Try to Defend Wealth Generated from Slavery
The Somerset decision caused Virginia’s colonial elite, who became the de facto leadership of the First Continental Congress—which, to a man, profited from hereditary slavery to believe that a combined committee of all thirteen colonies needed to be formed to aid enslavers like themselves in defending their wealth generated from slavery. There had been an earlier attempt made by the Massachusetts General Court in 1768 after Parliament’s Stamp Act of 1765.
The 1768 circular letter from the Speaker of the Massachusetts assembly to his counterparts in the other colonies referred to provincial—instead of parliamentary taxation as “an essential unalterable Right in nature ingrafted into the British Constitution, as a fundamental Law & ever held sacred & irrevocable,” as taken from Samuel Adams to Darius Sessions, Jan. 2, 1773, in Henry Alonzo Cushing, ed, The Writings of Samuel Adams, 1:185 and the House resolution of January 30, 1768, in A Journal of the House of Representatives (Boston, 1768), app. 1-2—and it did not spur the Virginians to action. But soon after the Somerset decision—the Virginians were found spearheading an initiative to form a continental Congress.
Slavery was the Catalyst
Slavery was the catalyst for Virginia’s slaveholding colonials to organize America’s thirteen colonies, not a rising democratic spirit nor any feelings of being treated lesser than other Englishmen. But Virginia’s slaveholding colonials knew that a privileged class resistance to British imperial governance that delivered them riches was a problematic rallying cry to mobilize the masses near the point of rebellion. This realization caused colonial America’s slaveholding patriots to pretend that the slavery issue was resolved based upon “colonial statutes.”
Further, they positioned that their quarrel with the British imperial government and King George III was based upon natural rights of all colonial subjects and the common welfare, giving life to the notion that governments derived, or ought to derive, their authority from the consent of the governed. The Founding Generation then adopted the political philosophies of liberalism, and republicanism of John Locke—claiming all men were created equal.
Virginians Courted Political Activists
The Virginians courted Massachusetts political activists—Samuel and John Adams. Samuel Adams expressed, “I wish for a permanent union with the mother country, but only on the principles of liberty and truth.” While his cousin John Adams hid his concerns about the state of imperial affairs. However, Samuel would speak of both reconciliation and separation in nearly the same breath, so as he claimed that he wanted a “bill of rights for British Americans” to counter Parliament’s Declaratory Act of 1766 because he still hoped for accommodation and reconciliation—even though he also believed that American independence was inevitable, and everyone knew him to be ambivalent.
Yet, in May 1774, the British imperial government further exacerbated colonial discontent in Massachusetts by closing the Port of Boston, sending in troops of occupation, and appointing the military governor Sir Thomas Gage. These decisions called the “Intolerable Acts” in response to the Boston Tea Party, radicalized the colony of Massachusetts and all northern colonies… dispelling any lingering illusions about the legal rights of colonial Americans. And with an undisclosed agenda—Virginia’s committee successfully lobbied other colonies to form committees to support the colony of Massachusetts and join a planned Continental Congress that would be committed to their collective protection.
First Continental Congress Meets
The First Continental Congress met in Carpenter’s Hall in Philadelphia from September 5 to October 26, 1774. In the forefront was Virginia’s delegation which included Colonel George Washington, Richard Henry Lee, Patrick Henry, Edmund Pendleton, Colonel Benjamin Harrison, Richard Bland, and at the head Peyton Randolph—who would be elected president of the convention. Further, the delegates were sent to the Continental Congress with similar charges: to restore the “union & harmony between Great Britain and the Colonies,” which would entail “ascertaining American rights” and adopting “a plan for the purpose of obtaining a redress of American grievances.”
However, scholar Arthur Schlesinger in The Colonial Merchants and the American Revolution, warned against looking too closely at these resolutions to reconstruct intent. They stated, he cautioned, “not so much what the dominant elements in a community really wanted, as what they dared to say that they wanted.” Schlesinger thought confusion played a prominent role—not calculation. However, his observation that the delegates were not transparent is sufficient when fastened to the fact that these men were strangers who presumed to speak for all of the colonials and whose beliefs about the British Empire were themselves changing. Thus, this supports the notion that the actions of the delegates to the Continental Congress were the best evidence of their beliefs, motivations, and self-serving interests.
It is significant that when the British imperial government became aware of the covert actions of Virginia’s committee—which included bankrolling the emerging rebellion based upon the wealth that the British imperial government had allowed them to amass and keep from hereditary slavery and them spearheading the forming of the Continental Congress their corrupt partnership with America’s slaveholding patriots in the southern colonies was destroyed. Virginia’s governor Lord Dunmore dissolved Virginia’s Assembly in June 1774.
Black Colonials Were Included in Declaration
The Declaration of Independence was considered to be a legal instrument and an indictment of the Crown and according to Stanford historian Jack Rakove, a William Robertson Coe Professor of History and American Studies and Political Science and author of Original Meanings: Politics and Ideas in the Making of the Constitution (1996) that the phrase “all men are created equal” in the Declaration meant was that the American colonies, as a people, had the same rights of self-government as other peoples, and hence could declare independence, create new governments, and assume their “separate and equal station” among other nations.
Dr. Rakove’s view aligns with the first sentence of the Declaration that Americans as a whole and not as members of their respective colonies are a distinct “people.” Thus, within this interpretation of this legal document… as black colonials were “people” living within the American colonies and everyone had basic rights under the English Bill of Rights of 1689, and as the vast majority of black colonials were colonial-born and were British citizens under England’s common law, black colonials were “included” in the Declaration of Independence and under no circumstance could they be capriciously “excluded.”
Further, Jefferson argued in his Notes on the State of Virginia that enslaving people would implant an “unremitting despotism” that would destroy the capacity of slaveowners to act as republican citizens. The moral corruption that Jefferson worried about, in other words, was what would happen to slaveowners who would become victims of their own “boisterous passions.”
Secondly, in an op-ed in Politico Magazine in March 2020, I helped Fact-Check the 1619 Project. The Times Ignored Me, the historian Leslie M. Harris, a professor of history at Northwestern University and author of In the Shadow of Slavery, 1626-1863, who consulted with Hannah-Jones, stated, “I listened in stunned silence as Nikole Hannah-Jones, a reporter for the New York Times, repeated an idea that I had vigorously argued against with her fact-checker: that the patriots fought the American Revolution in large part to preserve slavery in North America.”
Yet, history supports the conclusion that the patriots did in fact fastened a new nation of people to preserve the odious practice of slavery. The American people were tricked into supporting the baseless claim that black colonials were outside the Declaration of Independence even though Northern delegates knew black colonials were their countrymen—not slaves as of the Fourth of July 1776.
Continuing, Professor Harris argued “[W]hite Southerners might have wanted to preserve slavery in their territory, but white Northerners were much more conflicted, with many opposing the ownership of enslaved people in the North even as they continued to benefit from investments in the slave trade and slave colonies. More importantly for Hannah-Jones’ argument, slavery in the Colonies faced no immediate threat from Great Britain, so colonists wouldn’t have needed to secede to protect it. It’s true that in 1772, the famous Somerset case ended slavery in England and Wales,” as Harris concluded… “but it had no impact on Britain’s Caribbean colonies, where the vast majority of black people enslaved by the British labored and died, or in the North American Colonies.”
The Appalling Silence of the “Good”
Generally, it is as the Rev. Dr. Martin Luther King Jr. observed, “we will have to repent in this generation not merely for the vitriolic words and actions of the bad people but for the appalling silence of the good people.” White Northerners, such as John and Samuel Adams were “good people” of the 18th century who knew hereditary slavery was colonial tyranny. These white Northerners knew to a legal certainty that the British imperial government voided colonial slave statutes and racialized laws within the American colonies ‘for all purposes whatsoever” in 1766. These white Northerners knew to a legal certainty that the Somerset decision rendered colonial slavery unlawful within colonial America in 1772— and their “silence” allowed 500,000 black British citizens suffering as victims of colonial tyranny to be excluded from the Declaration of Independence and gave legitimacy to the misanthrope notion that the white colonists did not need to secede to protect slavery.
White northern delegates to the Continental Congress were equally complicit and were integral in the criminal enslavement of 500,000 colonial blacks, who were exploited and enslaved after the American Revolution. Further, although potential Northern delegates to the Continental Congress might have been first conflicted and hesitant about preserving slavery since none actively protested Parliament’s Declaratory Act of 1766 that abolished colonial slave statutes and racialized laws and all supported the Somerset decision of 1772 … but once Southern delegates brought resources to bear to help northern colonies with their rebellious actions against the British and the Continental Congress was organized and operating, white Northern delegates were single-minded, unwavering, and committed partners in the scheme to preserve hereditary slavery.
For example… Pennsylvania Benjamin Franklin who was in England when the Somerset decision issued in 1772 defended colonial slave practices and even criticized British abolitionists for celebrating the Somerset decision stating: “O Pharisaical Britain! To pride thyself in setting free a single Slave that happens to land on thy coasts, while thy Merchants in all ports are encouraged by thy laws to continue a commerce whereby so many hundreds of thousands are dragged into a slavery that scarce be said to end with their lives, since it is entailed on their posterity.”
Then there was Massachusetts John Adams who never owned black slaves, and as a lawyer he represented enslaved black colonials seeking freedom, and reportedly supported Massachusetts assembly passage of emancipation legislation for enslaved Massachusetts black colonials in 1773 and 1774 consistent with rulings in the Somerset case, and yet he aided and abetted white Southerners once the Continental Congress was formed. He was resolved in maintaining unity to achieve independence from Britain.
Further, slavery was abolished in Massachusetts in 1780 when it was forbidden by implication in the Declaration of Rights that Adams wrote into the Massachusetts Constitution. Yet, Adams was scrupulously reserved and restrained from advancing his liberal views upon his prominent slaveholding colleagues, America’s heroes, and founders. Seemingly, Adams adopted Pennsylvania patriot Benjamin Franklin’s unity perspective… “we must all hang together, or most certainly, we shall hang separately.” However, in the late 1780s, it is reported that Adams did have occasion to share his thoughts on the slavery question during the U.S. constitutional debates—restating, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”
Moreover, the claim that “white Northerners were conflicted” when it came to preserving slavery is not supported by the evidence. Just take into account in the aftermath of the Somerset decision and before the Declaration of Independence on November 7, 1775, Virginia’s governor Lord Dunmore issued a proclamation, adjudging America’s patriots as traitors to the Crown and proclaimed “all indented servants, Negroes, or others… free that are able and willing to bear arms.” This British imperial proclamation was well-publicized, and enslaved people throughout the thirteen colonies separated themselves from their white slave masters to join England’s military. However, when the British imperial government provided black recruits weapons and taught them how to use them in the late fall of 1775, the Continental Congress of fifty-six white men approved intimidation and violence to stop black colonials from escaping captivity.
With little dispute… the philosophical concerns and differences between white Southerners and white Northerners within British North America were quickly placed aside, and the cohort of fifty-six men stood “shoulder to shoulder” with American slaveholders, who they knew were criminally enslaving legally free black British citizens in violation of the English rule of law… these white Northerners held in confidence the fact that colonial hereditary slave statutes were never legally promulgated… were voided by the Declaratory Act in 1766 and were ruled unlawful by way of the Somerset decision and yet, they by a majority vote did agree to remove Jefferson’s criticism of colonial slavery and slave practice from the Declaration of Independence.
Pro-slavery Views Defined America’s Opposition to Britain
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 and ultimately, these views and interests were codified in the U.S. Constitution.
In the book Slave Nation: How Slavery United the Colonies and Sparked the American Revolution, scholars Alfred and Ruth Blumrosen observe that while white Northerners professed to hold enmity towards colonial slave practices on moral grounds, all capitulated to proslavery interests for the sake of unity during the Revolutionary War era. These white Englishmen living in Northern colonies did so because they collectively benefitted from the exploitation of black English citizens, as it financed the rebellion. Then slavery had transcendent importance for America’s emerging economy.
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.”
Colonial-born Blacks Were English Citizens by Birth
White Northern delegates who supported the emancipation legislation of Massachusetts’ General Court in 1773 and 1774 because of the Somerset decision and protested vetoes of this emancipation legislation by two successive Massachusetts’ governors before the American Revolution knew to a legal certainty that colonial-born blacks—who constituted 90 to 95 percent of the overall slave population were English citizens by birth. And yet these white Northerners supported white Southerners’ baseless legal claim that black colonials were human property based upon “colonial statutes,” and thus excluded from the Declaration of Independence.
Furthermore, these Northerners demurred in raising and advocating for respecting the inalienable rights of black colonials based upon the English rule of law during the American Revolution. None advocated that their former English countrymen be granted the due process of law, in accordance with the Definitive Treaty of Peace in 1783. And then white Northerners, now white Americans, facilitated and aided in enslaving and exploiting 500,000 black British citizens.
These white Northerners said nothing—fearing the real possibility of dis-unification of the United States, and then white Northerners, by a majority vote, allowed slavery to be codified in the U. S. Constitution, fully apprised that “colonial (slave) statutes” and racialized laws were never lawfully promulgated—were abolished by Parliament’s Declaratory Act of 1766 and were solemnly declared unlawful by way of the Somerset decision in 1772.
Facts are Stubborn Things
Despite, and yet again—maybe it was because of Adams’s constant reminders to the delegates of the Continental Congress throughout the revolutionary war that…“Facts are stubborn things; whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence,” is what best explains his cohort’s attempt to do just that—change the facts and evidence as to why a significant segment of colonial America separated themselves from the British and conceal the actual legal status of black colonials on July 4, 1776.
The False Equivalence with Caribbean Slave Practices
Professor Harris then conflates colonial slave practices within the American colonies with the more brutal Caribbean slave practices of the British—where the enslaved were primarily African natives to conclude that the Somerset decision “had no impact,” but this is a false equivalence. As an initial matter—it is essential to understand that the legal status of enslaved people in the North American Colonies and the Caribbean Colonies were legally distinguishable by material facts.
Firstly, the British Parliament had parliamentary sovereignty through the English Bill of Rights of 1689, and its Declaratory Act of 1766 had legally voided colonial slave statutes and racialized laws within the American colonies “for all purposes whatsoever.” All black people enslaved in the colonies in North America were suffering under colonial tyranny since colonial slave statutes and racialized laws were voided in 1766 and thus, in June 1772—slavery within America’s colonies was not authorized by any type of “positive law,” when the Somerset decision issued.
Secondly, unlike the British Caribbean colonies most enslaved people in colonial America were colonial-born English citizens suffering under colonial tyranny by their white countrymen. Colonial assemblies in the American colonies never legally changed the common law and the English law of partus sequitur patrem. Moreover, then Parliament abolished the racialized statutes and laws of partus sequitur ventrem within the American colonies in 1766, and thus, black colonials were presumptive English citizens when the Somerset decision issued in June 1772 because they were mostly born within the British colonies.
Thirdly, Charles Stewart based his ownership of James Somerset upon North American colonial slave statutes and laws. The Twelve Judges—Great Britain’s highest tribunal rejected Stewart’s ownership claim, declaring American colonial slave statutes and laws were legally inadequate to sustain a claim of ownership of a human person within the Kingdom. Furthermore, England’s highest tribunal ruled slavery was not “allowed and approved by the laws of this Kingdom,” and slavery within the Kingdom could only be lawfully accomplished through a “positive law,” a legislative power that colonial assemblies never possessed. Thus, among other things, as there is a concession by Professor Harris that Somerset “ended slavery in England and Wales,” the same must be, and was true for the British colonies in North America.
Lastly, the Somerset case involved “American Laws” and a black colonial named James Somerset who was suffering under the presumptive legality of colonial Virginia’s slave statutes and racialized laws, and it was after the historic ruling—the British imperial government prevailed upon their colonial governors to not enforce the Somerset decision within the American colonies fearing destabilization, social chaos, and outright rebellion within the southern American colonies.
Further, it is significant on this point that the colony of Massachusetts legislative assembly passed legislation emancipating the enslaved Massachusetts colonials based upon the Somerset decision—but all emancipation legislation was vetoed by successive Massachusetts governors before America’s Revolution started in 1775.
Criticisms of Slavery Removed
Thomas Jefferson complained that the British imperial government “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.” Jefferson was lamenting about the Declaratory Act of 1766.
Further, in light of the British Parliament exercising parliamentary sovereignty and voiding colonial slave statutes and racialized laws in 1766—the Somerset decision striking down “American Laws” throughout the Kingdom and affirming parliamentary sovereignty in 1772—the delegates to the Continental Congress decision to remove Jefferson’s overt criticisms of slavery and the slave trade in the Declaration… thus, it is counter-intuitive and unsupportable that U.S. historians continue to argue—slavery faced no immediate threat from the British imperial government—had no role and was an irrelevancy to the Founding Generation with respect to declaring these American colonies independent of the British imperial government and King George III on July 4, 1776.
According to historian David Armitage, the Declaration of Independence was a legal instrument influenced by Emerich de Vattel’s The Laws of Nation, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs Nations, a work of political philosophy and international relations. Declaring America independent was a necessary first step before the founding of our nation and as black colonials were presumptive parties-in-interest due to their British citizenship or living within the American colonies, their respective rights, status, and obligations under the Declaration must be analyzed and determined by the English rule of law on July 4, 1776, yet this did not and have never occurred.
The First Black Englishmen Were Already Free Men
Further, without regard to which party has the burden of proof, the deductive argument establishing black colonials’ party-in-interest status, as Dr. Stewart explains…” 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.”
The fact that the first nineteen Africans in 1619 were indentured servants—not slaves was not by luck. Instead, slavery within colonial America was a prohibited practice under the Divine Right of Kings, England’s Magna Carta of 1215, and the General Charter of Emancipation of 1381. But during the late 1650s… colonial assemblymen began criminally conspiring with colonial governors to place black colonials below the rule of English law with hereditary slavery, despite being British citizens by birth. The conspirators were successful in their criminal scheme, causing racial repression and colonial tyranny.
However, colonial slave statutes and their hereditary laws required the formal approval of England’s monarch under the Royal Assent by Commission Act of 1541—and were not lawfully promulgated since the colonial assemblies did not secure the formal approval of England’s King under the Royal Assent by Commission Act of 1541, as well as required by each colonial charter. Moreover, as the original colonial legislators, in failing to secure the King’s formal approval, had committed a serious crime in violation of the Sedition Act of 1661, these colonial slave statutes and laws were legal nullities and could never become “positive law” under the English rule of law.
Then the English Bill of Rights was signed into law in 1689 by King William III and Queen Mary II, who became co-rulers in England after the overthrow of King James II. The bill outlined specific constitutional and civil rights and ultimately gave Parliament power over the monarchy. The conferring of parliamentary sovereignty by way of the English Bill of Rights of 1689 abolished colonial Legislatures by operation of English law. However, the practice of hereditary slavery within colonial America and the extralegal practice of colonial slavery was assisted by colonial America’s distance from England, slavery’s profitability to the Kingdom and the New York Slave Revolt of 1712 which caused colonial assemblies to restrict the importation of Africans into colonial America while encouraging domestic slave practices.
Loosely Enforced, But Still Not Legal
Subsequently, in 1763 when the new Prime Minister George Grenville came into office the British imperial government ended salutary neglect, an informal policy of the British government from the early to mid-18th century regarding its North American colonies under which trade regulations for the colonies were laxly enforced, and imperial supervision of internal colonial affairs was loose as long as the colonies remained loyal to the British government.
Most notably, Grenville advocated for Parliament to enact laws requiring that the American colonists pay for the increased number of British troops through a series of taxes that included the Stamp Act in 1765. However, the colony of Massachusetts formed the Sons of Liberty in the summer of 1765 to oppose the act… claiming their rights as Englishmen to be taxed only by their consent through their representative assemblies, as had been the practice for a century and a half.
Parliament repealed the Stamp Act and concurrently enacted the American Colonies Act 1766, commonly referred to as the Declaratory Act of 1766 that addressed colonial government corruption, graft, and the exploitation of colonial-born blacks and captured Africans brought to the North American colonies.
Declaratory Act Voids Colonial Statutes
The Declaratory Act of 1766 voided colonial statutes and racialized colonial laws “for all purposes whatsoever” and the Americans did not protest the abolishment of its inconsistent and repugnant colonial statutes and racialized laws as these English people in the American colonies knew and conceded to Parliament’s legislative power and authority.
The Twelve Judges in the Somerset case determined slavery could only be a lawful condition in the Kingdom of Great Britain by “positive law,” a legislative power that the colonial assemblies in North America never possessed. Thus, it is counterintuitive and outside a sane construction of a deductive argument to conclude slavery was not a large part of America’s Revolution, as white colonials were unlawfully exploiting black colonials before the Declaration of Independence on July 4, 1776, continued to do so during America’s Revolution and ultimately the Founding Generation codified their unlawful enslavement in the U. S. Constitution in the late 1780s.
Colonial statutes could not justify the enslavement and exploitation of 500,000 British citizens after the Definitive Treaty of Peace in 1783 was ratified, yet it did, and it is America’s public policy. Historians and others must reexamine the question of preserving slavery and whether the preservation of slavery in North America was a significant reason for the American Revolution.
Somerset Ruled Slavery Unconstitutional
The Somerset decision in 1772 was the final “nail in the coffin” for colonial slavery as England’s highest court ruled slavery within the Kingdom was unconstitutional. Slavery in the Kingdom could only be authorized by “positive law,” and it was a legislative power held exclusively by the British Parliament. Such being the case, and as there is no historical record supporting the legal conclusion that colonial slave statutes were proven to be a “positive law,” in any of the North American colonies when the English people in the American colonies declared themselves an independent nation of people by way of the Declaration of Independence in 1776… the disapproving historians who claims it to be “matters of verifiable fact” must meet the burden of persuasion, and proof, under the rule of English law.
A Criminal Origin
Slavery in the United States has a criminal origin, and it is the “fruit of the poisonous tree.” The “fruit of the poisonous tree” is a metaphorical expression whose origin is Anglo-American common law. The metaphor stands for the legal proposition that if the source of evidence (the tree) is corrupted or tainted, anything deriving from it (the fruit) will bear the same flaw. This applies to U. S. slavery (the fruit) since colonial slavery (the tree) was a criminal enterprise based upon colonial government corruption, graft, and colonial tyranny. Doubtlessly, U. S. slavery bears the same flaws as colonial slavery, and it could not have been lawfully inherited from British colonial rule based upon “colonial statutes” since the British imperial government abolished all “colonial statutes” ten years before the Declaration of Independence.
Yet U. S. slavery being a legal institution during British colonial rule is America’s public policy and serves as basic U. S. history, even though colonial slave statutes and racialized laws supporting slavery during colonial rule were not lawfully promulgated and were abolished by Parliament’s Declaratory Act of 1766 “for all purposes whatsoever.” Further, colonial slave statutes were repudiated by the British highest court, the Court of the King’s Bench in the James Somerset v. Charles Stewart case which declared slavery was not “allowed and approved by the laws of this Kingdom,” and that slavery in the Kingdom could only be legal by a “positive law,” which meant a statute, or a law enacted by England’s Parliament in 1772. This was four years before Parliament’s Declaration of Independence. Nonetheless, America’s Second Congress claimed black colonials were excluded from the Declaration because they were slaves.
America’s most reverberating tremor was felt when General George Washington declared this provocative truth, professing ownership of 500,000 black British citizens on behalf of white Americans in May 1783 in a meeting with British General Guy Carleton. Washington advocated for the surrender, retention, and continued enslavement of black colonials here in America based upon “colonial statutes.” Carleton was not persuaded. Washington’s claim and professed basis for enslaving and exploiting black Englishmen based upon “colonial statutes” shaped America’s public policy and U. S. constitutionalism. There are enumerable legal reasons why Washington’s claim to Carleton and the resulting enslavement and exploitation of 500,000 black Englishmen was legally unsupportable, and without factual merit.
As an initial matter and destructive to America’s public policy; (1) that slavery under the British rule of law was a legal institution; (2) the veracity of Washington’s colonial statute ownership claim and (3) the lawfulness of America’s enslavement of 500,000 black Englishmen is the fact that colonial slave statutes and laws were never lawfully promulgated.
Under the Royal Assent by Commission Act of 1541 and each colonial charter, formal approval of the sovereign was required to lawfully pass legislation within the Kingdom. Colonial assemblies failed to secure the King’s formal approval upon its colonial slave statutes and laws. Further, colonial assemblies purporting to enact slave statutes and hereditary slave laws, without securing the King’s formal approval committed a treasonous offense under the Sedition Act of 1661. Thus, colonial slave statutes and laws were legal nullities and were never lawful, least of all, were not “positive laws.”