The Declaratory Act of 1766
The Declaration of Independence in 1776 on behalf of the 13 American colonies bristles with contempt and displeasure regarding King George III’s handling of the colonial legislative system. The document reflected the colonies’ resentment and frustration against the King and his parliamentary court… the other bicameral colonial chamber. Moreover, grievance number 27 in the document targets the legislative avoidance of “repugnant” colonial statutes and laws by way of England’s Declaratory Act of 1766 and uses “whatsoever” to punctuate universal outrage. Inexplicably, the colonists contend England’s Parliament lacked the authority to rule over them by “suspending our own Legislatures and declaring themselves invested with power for us in All case whatsoever.” As part of the colonial charter, the colonial legislative assemblies were required to secure the King’s permission before enacting a colonial statute or law.
Further, colonial assemblymen who purported to enact laws in such a manner had committed a crime under the Sedition Act of 1661… as they were required to secure the King’s permission on all colonial statutes and laws under the Royal Assent by Commission Act of 1541. They failed to do so. Countless “repugnant” statutes and laws were passed and enacted in colonial legislative assemblies, contrary to English law and colonial charters. They did not have the King’s permission, as required by English law.
The English Bill of Rights of 1689, ratified by England’s King William III and Queen Mary II, authorized England’s Parliament to act in the King’s stead in all legislative matters. The Act stripped royal powers from the monarch by declaring, “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal”… “That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late is illegal.” These clauses established parliamentary authority of checks and balances over the monarch, and legislative sovereignty over British colonies, previously imbued and vested unto England’s monarchy, by English law.
With the monarch’s power to persecute subjects neutralized, the American colonies flourished under England’s unofficial salutary neglect policy in the wake of the English Bill of Rights of 1689. The British imperial government had an unofficial policy of salutary neglect when it came to colonial affairs. The British imperial government’s lackadaisical attitude and practice of not enforcing English laws, statutes, and standards within British colonies led to an American colonial creation and enactment of tyrannical legislative mandates contrary and incongruent with English law. Wide spread civil unrest throughout the Kingdom had embolden colonial assemblies to purport to exercise plenary legislative powers outside the colonial charter and English law.
During the late 1750s, Parliament made an effort to regain legislative control over rogue colonies and settlements. It began to replace salutary neglect with the solitary author of legislative laws and governance, much to the chagrin of the colonists in America. Then in the early 1760s, 22-year old King George III and his 17-year old wife, Queen Charlotte of Mecklenburg-Streliz, began to reign. Queen Charlotte was a direct descendant of the black branch of the Portuguese Royal House. Her lineage traced back to the 13th-century ruler Alfonso III and his paramour Madragana Ben Aloandro… who was an African. Having a wife with noticeable black characteristics, who gave birth to George Augustus Frederick, the Prince of Wales in 1762… King George III’s heightened sensitivities to the issue of race and slavery in the Kingdom became apparent.
The era of salutary neglect officially came to an end in 1763, when the new Prime Minister George Grenville came into office. By placing a standing army in the colonies to protect against France’s continual aggression at the end of the Seven Years War, Grenville advocated for Parliament to enact laws requiring that the colonists pay for the increased number of British troops. He concluded that since the colonists benefited from this defense, they should help pay for the army’s cost through a series of taxes imposed by Parliament. Most notably, Grenville’s proposal of new taxes included the Stamp Act in 1765, and the colonists disapproved, and Parliament repealed the Act.
The repeal of the Stamp Act was coupled with the Declaratory Act of 1766. The latter Act sought to recalibrate the proscribed legislative role of colonial legislative assemblies within the colonies in North America by legislatively abolishing “repugnant” colonial statutes, laws, resolutions, orders, and related regulations, and rendering colonial slave statutes and associated regulations “utterly null and void to all intent and purposes whatsoever.” The Act legislatively avoided colonial slave statutes and related regulations because they were indeed “repugnant” to English laws or did not have the consent of England’s King. All legislative assemblies were suspended, and their assemblymen were disabused to believe that they could enact colonial statutes, laws, votes, resolutions, and related regulations, without first securing Parliament’s permission.
Concerning the Declaratory Act of 1766, the British government’s policy of imperial administration was lawful and proper in each colonial charter. England’s period of salutary neglect where colonial government ran amok did not change anything. According to the colonial charter… the colonial legislatures were required to abide by English law… which they were not doing… needed to secure the King’s permission to pass any colonial statute or law… which they did not do… and to faithfully discharge the duties of their office in accordance to English law… which they were not doing. Corruptly, colonial legislative assemblies purported to enact statutes, laws, and related regulations to place a class of people below the English rule of law. Their members criminally profited from these corrupt acts, violating their high oath of office and the English rule of law. The 13 American colonial legislative assemblies and their membership could not be heard to complain about the enactment of the Act.
Doubtlessly, bicameralism was a core constitutional safeguard in colonial governance. This safeguard was memorialized in each colonial charter and was a necessary and defined limit placed upon the devolved power granted to colonial legislative assemblies. In his book, The English Constitution, Walter Bagehot, an English scholar, observed that “A formidable sinister interest may always obtain the complete command of a dominant assembly by some chance, and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule.” The rogue actions of colonial legislative assemblies in America were a species of the type of unconstitutional challenges to lawful governance which he spoke of, as a formidable interest of human slavers took complete command of colonial legislative assemblies… “for a moment.” However, the English rule of law stood firmly, and the Declaratory Act of 1766 recalibrated the proscribed roles and power of colonial legislative assemblies.
Slavery and its profitability was a “formidable sinister interest” that overwhelmed colonial assemblymen and all colonial America. And in furtherance of their common grievances regarding bicameralism… nearly half of the twenty-seven grievances against King George III in the Declaration of Independence related to the colonial legislative structure. The first eight grievances were:
(1) “He [King George III] has refused his Assent to Laws, the most wholesome and necessary for the public good …”
(2) “He has forbidden his Governors to pass Laws of immediate and pressing importance unless suspended in their operation till his Assent
should be obtained, and when so suspended, he has utterly neglected to attend to them…”
(3) “He has refused to pass other Laws for the accommodation of large districts of people unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”
(4) “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records for the sole purpose of fatiguing them into compliance with his measures.”
(5) “He has dissolved Representative Houses repeatedly, for opposing with many firmness his invasions on the rights of the people.”
(6) “He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.”
(7) “He has endeavoured to prevent the populations of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.”
(8) “He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary powers.”
The interplay, frustration, and legal requirement placed upon each colonial assembly to first secure the permission of England’s monarchy upon any portended statutes and laws were further highlighted in the thirteenth, twenty-first, and twenty-third grievance alleged against King George III in the Declaration of Independence: These grievances were:
(13) “He has combined with others to subject us to jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation.”
(21) “For taking our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments.”
(23) “For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in All cases whatsoever.”
Furthermore, the legal question of whether colonial slave statutes were legal after the Declaratory Act of 1766 was directly addressed and resolved by the Twelve Judges of the Court of the King’s Bench, impaneled by Lord Chief Justice Mansfield in the James Somerset v. Charles Stewart case in 1772… four years before the Declaration of Independence. The Somerset court reaffirmed parliamentary sovereignty and judicially struck down colonial statutes and related regulations by ruling slavery was not “allowed and approved by the laws of this Kingdom” and could only be lawful by “positive law”… which only Parliament had the power to enact a “positive law” during colonial times. And definitively not any colonial legislative assembly, as each colonial charter had made plain.
These enumerated grievances serve as inculpatory proof that colonial America’s leadership knew the Declaratory Act of 1766 had legislatively avoided all colonial statutes, laws, resolutions, orders, and related regulations during colonial times. Colonial statutes and laws were “repugnant” to established English law in the absence of England’s monarchy’s permission. All colonial charters required colonial assemblies to secure the monarchy’s approval in furtherance of passing colonial statutes and laws. Parliament’s English Bill of Rights of 1689 stripped England’s monarch of royal powers and substituted Parliament per the Royal Assent Commission Act of 1541 and the Sedition Act of 1661 that criminalized legislators who purported to enact laws without the King’s permission. The colonial legislative assemblies’ failure or unwillingness to secure permission to enact statutes and laws and other reasons caused Parliament to declare violative colonial statutes and laws were “utterly null and void to all in purposes whatsoever.”
Washington's Colonial Statute Claim
Washington’s “colonial statute” reasoning for denying liberty to 500,000 Revolutionary War-era blacks under the Definitive Treaty of Peace in 1783, made to British General Guy Carleton in May 1783 led to America’s dehumanization of countless men, women, and children, and it was done cleareyed in pursuit of their ideals of a “more perfect union.” America failed to grant due process to black Englishmen, authorized by international law. England’s Magna Carta of 1215 and common law had long declared “one may be a villien in England, but not a slave.” This was the reason why the first 19 Africans arriving unto the colony of Virginia’s shores were indentured servants, not slaves, in 1619. Further, colonial assemblies did not have the power to enact a “positive law” and as Parliament had enacted the Royal Assent by Commission Act of 1541 that required the King’s permission unto all statutes and law enacted in the Kingdom and made it a serious crime for any legislature to purport to enact a statute or law without the King’s permission by the Sedition Act of 1661… colonial slave statute were legal nullities by operation of English law.
Thus, colonial slavery was never approved and authorized by the laws of England, and as colonial legislators were bound to adhere to English law by colonial charter… their putative legislative acts regarding slavery were legal nullities and totally void. No one was above or below English law, and no Englishman could be born a slave during colonial times. Notwithstanding, Virginia’s legislative assembly, House of Burgesses, enacted a slavery statute in 1661, and in 1662 purported to pass the hereditary statute of partus sequitur ventrem that imposed lifetime bondage on colonial-born people based upon the legal status of the mother. Virginia’s legislative assembly did not have plenary power or authority to authorize colonial slavery or to vary any English law.
Virginia’s legislative assembly was bicameral, and all statutes required the permission of England’s monarchy to be a valid statute, which they did not secure. Virginia’s colonial slave statutes were “repugnant” to the English law that prohibited slavery and partus sequitur patrem… a patrilineal descent system. Furthermore, Virginia’s colonial charter forbade the enactment of colonial statutes at odds with English law. Virginia’s colonial charter’s repugnancy provision and failure to secure the King’s permission prevented the slave statute in 1661 and the hereditary slave statute of partus sequitur ventrem in 1662 from becoming lawfully promulgated colonial statutes. Nonetheless, due to corrupt colonial government officials in the colony of Virginia, the slave statutes operated extralegally in Virginia. Soon, this slavery scheme was emulated by nearly all other colonial assemblies within British North American colonies. Slavery in colonial America was highly profitable, and it became endemic throughout the British colonies. Colonial statutes were not positive laws and could not authorize the enslavement of black colonists or Africans during colonial times.
Lastly, colonial slave statutes became “null and void” in 1766 when England’s Parliament passed the Declaratory Act of 1766, which legislatively abolished all colonial statutes, laws, and related regulations before rebellion had even sparked an ember. Moreover, the 1772 seminal decision of the Twelve Judges of England’s Court of the King’s Bench in the James Somerset v. Charles Stewart case established a Positive Law Framework for authorizing slavery within the Kingdom of Great Britain during colonial times… a legislative power that vested exclusively with Parliament. Further, this tribunal determined slavery was not “allowed and approved by the laws of this Kingdom.”
Objectively, the holding in the Somerset case applied in colonial America, as the litigation concerned the legality of “American Laws” and the substantive legislative consequence of the Declaratory Act of 1766 avoided all “American Laws” and did cause the 13 colonies in America to collectively condemn King George III “For taking our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments” in the Declaration of Independence. Black Englishmen were countrymen of the Patriots… not slaves, yet they and then their children became the bedrock of America’s slave-pool.
In the early 1640s, a series of civil wars erupted between Royalists and Parliamentarians. The Parliamentarians won the civil wars, which led to the English monarchy’s replacement with the Commonwealth of England under Oliver and Richard Cromwell. Constitutionally, the actions established the precedent that an English monarch cannot govern without Parliament’s consent. And the principle of parliamentary sovereignty or supremacy was legally established as part of the Glorious Revolution in 1688. The following year, Parliament codified parliamentary sovereignty in the English Bill of Rights of 1689. The parliamentary sovereignty principle holds that this legislative body has absolute sovereignty and is supreme over all other government institutions, including executive and judicial bodies.
The English Bill of Rights of 1689 stripped England’s monarch of royal powers. The Act specially declared “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.” Additionally, “That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late is illegal.” And thereby, this Act of Parliament declared parliamentary sovereignty. Varied English constitutional scholars such as A. V. Dicey opined that Parliament had the right to make or unmake any law whatever. Further, the law of England recognizes no person or body as having a right to override or set aside the legislation of Parliament.
Further, the English Bill of Rights of 1689 incorporated in law the conviction that although some people may inherit privileges, all English citizens have “basic rights.” Fundamental was the right to liberty that could not be capriciously interfered with, abolished, or changed by the government and the right to the due process of English law. These “basic rights” were conferred unto everyone in the Kingdom, as Parliament did not take this opportunity to exclude foreigners. Moreover, England was “a nation of laws, not men,” and “no one was above or below English law.” By way of the English Bill of Rights of 1689, Parliament conferred “basic rights” upon black people living in colonial North America, and colonial slave laws were denying the power and authority of Parliament to do so.
Dicey and other English constitutional scholars concluded that there were three sources for parliamentary sovereignty: (1) sovereignty by an Act of Parliament itself; (2) the complex relationship between all parts of government and their historical development and (3) the English courts that enforced all Acts of Parliament without exception. The Parliament of Great Britain was conferred parliamentary sovereignty over the colonies in North America by all three.
Firstly, Parliament’s English Bill of Rights of 1689 declared Parliament’s supreme power over the colonies: parliamentary sovereignty. Then Parliament’s Declaratory Act of 1766 declared Parliament with “full power to make laws and statutes of sufficient force and validity to bind the colonies and people of America… in all cases whatsoever.” Parliament’s Declaratory Act of 1766 affirmed parliamentary sovereignty, legislatively avoided colonial statutes and laws, and recalibrated colonial legislative assemblies’ devolved power to enact laws in 1766. The Act limited the power of colonial legislative bodies to enact statutes, laws, resolutions, votes, orders, and proceedings with Parliament’s permission, as provided for in colonial charters, and declared “all resolutions, votes, orders, and proceedings” in the colonies that denied or questioned Parliament’s power and authority to make laws binding the colonies “in all cases whatsoever” were “utterly null and void to all in purposes whatsoever.” And in real terms, the Declaratory Act of 1766 recalibrated the imperial relationship with its wayward colonial legislative assemblies in North America by reaffirming parliamentary sovereignty. The abolishment of repugnant colonial statutes, laws, orders, and resolutions that denied or challenged “the power and authority of the parliament of Great Britain, to make laws and statutes” restored colonial legislative systems to status quo ante. Thus, Parliament’s legislation rendered all colonial statutes, laws, and resolutions that challenged Parliament’s power “utterly null and void” in 1766.
Fundamentally, all colonial slave statutes and related regulations denied and questioned the power and authority of Parliament’s English Bill of Rights of 1689 since the Act codified “basic rights” of everyone within the Kingdom and they all violated 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 had criminalized and held legislators to account for enacting statutes and laws without the King’s permission. Colonial slavery denied liberty and due process under English law to blacks born in colonial America and Africans. In particular, the fundamental rights… in particular, “due process rights” and “Liberties,” could not be taken away, abolished, or interfered with by the government in the absence of the due process of English law. Moreover, foreigners in the realm had the right to due process under the rule of English law. With little debate, the enactment of slave statutes and related regulations by colonial legislative assemblies that facilitated the subsequent passage of hereditary slave statutes and laws denied and questioned: “the power and authority of the parliament of Great Britain, to make laws binding the colonies.” Doubtlessly, by enacting colonial slave laws, colonial legislative assemblies assumed and exercised Parliament’s power and authority.
Furthermore, colonial legislative assemblies enacted colonial slave statutes and passed resolutions in the absence of lawful authority. Colonial legislative bodies, by enacting colonial slave statutes and related regulations “suspended” (overruled) English laws like jus soli, partus sequitur patrem, and the due process of English law, specified in England’s Magna Carta and the English Bill of Rights of 1689 and did not seek or receive Parliament’s consent. The colonial legislative assemblies did not have plenary power and authority to overrule or change English laws.
Lastly, the enactment of the hereditary slave statute and law of partus sequitur ventrem required all colonial legislative assemblies in North America to secure Parliament’s permission before “overturning” the English common law traditions of jus soli: birthright subjecthood and partus sequitur patrem: a patrilineal descent system. Indeed, enslaving people born in colonial North America and subjecting captive Africans to toil as a slave required Parliament’s permission. Each colonial assembly in North America failed to do so. Thus, under the Declaratory Act of 1766 and as a matter of English law, colonial slave statutes and all related regulations authorizing colonial slavery were legislatively abolished in North America’s colonies. After 1766, colonial slavery operated extralegally and afoul of Parliament’s supreme power and legislative authority.
A Study of Colonial Slavery
In September 2016… a study by the United Nations Working Group of Experts on People of African Descent, a body that reports to the international organization’s High Commissioner on Human Rights, noted a link between injustices and the dark chapters of America’s colonial history, observing “[I]n particular, the legacy of colonial history, enslavement, racial subordination and segregation, racial terrorism and racial inequity in the United States remains a serious challenge, as there has been no real commitment to reparations and to truth and reconciliation for people of African descent.”
Moreover, the U. N. Report noted … “[T]he dangerous ideology of white supremacy inhibits social cohesion amongst the U. S. population” and “racial terrorism” and saw the refusal of the U. S. to respect fundamental human rights of people of African descent and its institutionalized racist policies and practices as irrefutable evidence. The U. N. Report strongly advocates for the United Nations’ involvement and continued leadership.
Further, we were taught colonial-born blacks were not Englishmen by birth, and they had no rights, which a white colonist was bound to respect under English law, and being relegated to the state of a slave at birth was lawful during British rule. However, those suffering as slaves had legal remedies under the law. The teachings are false since colonial slave statutes were the product of colonial tyranny, corruption of colonial government officials, and such statutes and related regulations were not lawfully approved authorized by English law. Moreover, 17-years before the Definitive Treaty of Peace in 1783 that ended the American Revolutionary War, all colonial slave statutes, laws, and related regulations were legislatively abolished by Parliament’s Declaratory Act of 1766.
Doubtlessly, congressional legislation H. R. 40 bill… named for the “40 acres and a mule” establishes a Commission to Study and Develop Reparation Proposals for African-Americans. The bill seeks to authorize a commission to objectively study slavery in the 13 British colonies and the United States from 1619 to 1865. Among other requirements, the commission will identify (1) the role of federal and state governments in supporting the institution of slavery, (2) forms of discrimination in public and private sectors against freed slaves and their descendants, and (3) lingering adverse effects of slavery on living African-Americans and society. The commission will make recommendations regarding any form of a national apology, compensation, and atonement for slavery. However, there is substantive opposition to the bill’s passage moored to the presumptive lawfulness of colonial slavery and the U. S. enslavement of Revolutionary War-era blacks during the 1780s.
The substantive opposition to H.R. 40 is that colonial slavery was a legal practice during colonial times, and it was lawfully inherited. This conclusion is not historically accurate, and the Ida B. Wells Center challenges the assignation of the lawfulness of colonial slave statutes at all relevant times. Accordingly, we believe that colonial slavery was an extralegal practice due to colonial legislative government officials’ corruption. The colonial legislatures were bicameral, and colonial legislators were required to secure England’s King’s permission to authorize a slave statute, law, or related regulation within the British American colonies. Colonial legislators did not have plenary power to pass a colonial slave statute. A putative colonial law passed without the permission of England’s King was void ab initio.
Subsequently, Parliament’s English Bill of Rights of 1689, approved by England’s monarchy, divested royal powers, outlined specific constitutional and civil rights, and declared Parliament’s supreme legislative power throughout the Kingdom: parliamentary sovereignty. In particular, by operation of English law, the Act was an assignation of the colonial charters. Parliamentary sovereignty England’s Parliament with “full power to make laws and statutes of sufficient force and validity to bind the colonies and people of America”… “in all cases whatsoever.”
Moreover, the legislatively avoided colonial statutes, laws, resolutions, orders, and related regulations that were “repugnant” to English law and respective colonial charter. Parliament reaffirmed parliamentary sovereignty and declared all errant statutes and laws “utterly null and void to all in purposes whatsoever.” Colonial slave statutes and related regulations were “repugnant” to English law, and all were legislatively avoided by the Declaratory Act of 1766, 18-years before the Definitive Treaty’s ratification in 1784. The colonial assemblies either violated English law… exceeded the limits of its devolved powers, or failed to secure England’s monarchy’s permission with respect to enacting colonial statutes and laws. Presumably, Parliament’s Declaratory Act was done to prevent any continued confusion regarding these colonial statutes and laws’ legal sufficiency. England’s monarchy and its successor, Parliament under the English Bill of Rights of 1689, had to agree to enact colonial statutes or laws before becoming positive municipal law.
Lastly, by executive proclamation, people suffering as slaves were liberated in June 1779. By agreement, the U. S. extended British rule to treaty ratification. The ending date of British rule was the sine qua non for the Definitive Treaty of Peace in 1783 and is a conclusive fact. It makes U. S. slavery unlawful and a violation of an international treaty. Thus, if true… 500,000 Revolutionary War-era black colonists should have been “set at liberty” once the Definitive Treaty of Peace was ratified on January 14, 1784, and not enslaved by the United States.
Ascribing accountability means answerability, blameworthiness, liability, and delivering an honest determination, requiring accurate facts. This is especially critical since this concerns America’s historiography. Colonial-born blacks and Africans suffering as slaves were placed outside the English rule of law as slavery was extralegal when America received its independence from Great Britain in January 1784.
Is Reparations a Proper Remedy
Reparations was an equitable gesture when during America’s Civil War… the U. S. government introduced the term into America’s consciousness. Union General William Sherman concluded that each former slave family should receive 40 acres. Sherman signed Field Order 15 and allocated 400,000 acres of confiscated Confederate land to black families. Further, families were to receive mules left over from the Civil War… thus, it gave rise to America’s first reparations plan… forty acres and a mule. But after President Abraham Lincoln was assassinated in April 1865… the new president, Andrew Johnson, nullified and reversed Field Order 15 and returned the land to former slave owners.
The issue of reparations has been saddled with two ahistorical beliefs; (1) America’s founding generation legally owned black slaves during colonial times, and (2) slavery was lawfully started here in the U. S. in the late 1780s. These are threshold beliefs framing the issue of reparations and foreseeably are the main reasons in a recent poll conducted by Associated Press-NORC Center for Public Affairs Research… only 35 percent of Americans support reparations for U. S. slavery.
The recurring arguments opposing reparations are that there are no black slaves living today; slavery ended nearly 160 years ago, at the tremendous cost of thousands of white lives due to the Civil War. Many families came to America after slavery ended… thus, reparations are unfair.
The refutation of these arguments is… reparations are not against white America or individuals… instead, it is against the American government and society, which has facilitated, perpetrated, and perpetuated slavery. Moreover, victims of human rights violations are entitled to obtain adequate and effective reparations… and it is recognized in relevant international instruments. Nonetheless, this poll’s bright spot is that among those ages 18 to 29, the number rose to 45 percent.
Restitution for Slavery
An objective study of slavery in the 13 British colonies reveals compelling facts. Firstly, the discrete aspects of colonial slavery were all criminal acts as colonial assemblies did not have the power to enact a “positive law”. Further, all colonial statutes and laws required the King’s permission under the Royal Assent by Commission Act of 1541 and the Sedition Act of 1661 made it a crime to enact a statute or law within the Kingdom without the King’s permission. The act of slavery included kidnapping, murder, assault, battery, rape, misprision, false imprisonment, and denial of due process. Under English law, during colonial times… the burden of proof to advance a slave ownership defense, no different than claims of self-defense or insanity, was upon the person asserting such a defense.
In Rex v. Stapylton (K.B. 1771) (unreported), a criminal defendant named Robert Stapylton, after assaulting a black person named Thomas Lewis, asserted a slave ownership defense. The presiding judge, Lord Chief Justice Mansfield, explained the exacting standard of proof the defendant Stapylton faced: that “being black would not prove the property.” Overall, parties who claim ownership have the duty of proving their claims are actual.
Further, after the Revolutionary War ended by treaty, General George Washington claimed that owned black colonials based upon colonial statutes. However, Americans did not and could not lawfully own Revolutionary War-era blacks based upon “colonial statutes,” since they were not lawfully promulgated… they were abolished by Parliament’s Declaratory Act of 1766 and England’s Highest court had ruled slavery was unconstitutional and could only be lawful in the colony by virtue of “positive law,” a power that only the British Parliament possessed.
Nonetheless… Washington’s claim became America’s policy and led to the enslavement of 500,000 Revolutionary War-era blacks who became the bedrock of America’s slave pool. However, Washington’s claim and America’s policy were legally unsupportable since colonial slave statutes and related regulations were struck down and made null and void under the Declaratory Act of 1766. Furthermore, Parliament did not repeal the Declaratory Act. Britain retained authority over the colonies until signing the Definitive Treaty of Peace in 1783 and did not reassign legislative rights back to the colonies. Further, England’s Court of the King’s Bench struck down colonial slave statutes by way of the Somerset decision in 1772, ruling that slavery was not “allowed and approved by the laws of this Kingdom” and could only be made lawful by a “positive law” that vested with Parliament. Therefore, Washington’s detainment of the 500,000 Revolutionary War-era blacks was illegal and criminal.
Restitution versus Reparations
Two ahistorical beliefs plaguing reparations are eviscerated (1) that slavery was a legal institution during colonial times and (2) erstwhile Englishmen who became Americans legally owned black colonists during colonial times based upon “colonial statutes.” Colonial statutes were legal nullities under the Royal Assent by Commission Act of 1541, the Sedition Act of 1661 and the Declaratory Act of 1766 abolished colonial statutes. Colonial blacks were entitled to their liberty under the Definitive Treaty of Peace in 1783 and entitled to a due process hearing.
These legislative actions by the British Parliament and England’s common law establish an entitlement to legal remedies for the horrors of U. S. slavery… not an award of equitable relief. Thus, it is an axiomatic principle—victims awarded equitable relief must not have a remedy at law. And they must plead for equitable relief… in effect, waiving and abandoning all common law remedies. The U. S. Supreme Court in Franklin v. Gwinnet County Public Schools, 503 U. S. 50, 75, 76 (1992) echoes the finding that a tribunal must determine the adequacy of a remedy in law before resorting to equitable relief.
Choosing equitable relief would be problematic since Revolutionary War-era blacks were legally free people. The condition and institution called slavery within the North American colonies were not authorized by English law. The colonial statutes and regulations purporting to allow colonial slavery were legislatively avoided by Parliament’s Declaratory Act of 1766. Accordingly, parties injured by the practice of slavery do have a remedy at law since it was prohibited on English soil and could not have been legally migrated into the United States after the American Revolution.
Additionally, colonial slave statutes and laws were judicially struck down by the 1772 Somerset Decision declaring parliamentary sovereignty and ruling that slavery was not “allowed and approved by the laws of this Kingdom” and could only be made lawful by a “positive law” that vested with Parliament in 1772. Furthermore, Parliament’s Declaratory Act of 1766 stripped colonial legislative assemblies of their lawmaking powers, and such powers were never reinstated.
Moreover, the legal remedy for having been enslaved in violation of English law was being restored to status quo ante. The existence of common law remedies is plain since Parliament enacted the Declaratory Act of 1766. Just because slaveholding patriots like General George Washington claimed slavery was a lawful condition based upon “colonial statutes”… and the U. S. government went along with this assertion, did not and could not transform colonial slavery into a lawful institution under English law, nor, did it nullify due process rights under English law. The U. S. enslaved 500,000 Revolutionary War-era blacks without affording them legal due process of law.
Thus, by accepting an equitable remedy, the common law remedy of being restored to status quo ante is abandoned or, at least, will not be given adequate consideration. At law, remedies ought not to be ignored in furtherance of designing a fair and proper restorative justice program. Fortunately, there is no bar to alleging contested facts and pursuing alternative remedies. As logic dictates… the time to sort out alternative pled remedial requests is at the end of a case. Doubtlessly, both equitable and legal remedies must be considered.
The equitable remedies are (1) compensation, (2) rehabilitation, (3) satisfaction, and (4) guarantees of non-repetition. Concerning compensation… under English common law… the one who has created the wrong has to make amends by returning the thing taken to its rightful owner. The illegal detainment of 500,000 Revolutionary War-era blacks violated the Definitive Treaty of Peace in 1783 and created a slave pool, allowing for the criminal abuse and misuse of English subjects in the newly formed America. The U. S. has to make amends for the wrong.
Revolutionary War-era blacks were Englishmen by English law, and by terms of the Definitive Treaty of Peace in 1783, all should have been liberated. The U. S. government bears the responsibility for providing an avenue for reformative justice and restitution for the men, women, and children enslaved under English law before America became a free and independent nation in 1783. The validation of this fact and America’s acknowledgement and acceptance of its role furthering slavery and institutional racism… much can be accomplished towards repairing centuries of systemic and protracted racial violations against their descendants and others. Revolutionary War-era blacks’ enslavement caused their descendants to lose their birthright, legacy and inherited wealth. And because of this wrongful Act… the sons and daughters of the enslaved are real-party-interest and are entitled to advocate and to push for justice for their ancestors, who had been criminally enslaved in America and who had been atrociously denied their due process under English law. Through legislative remedies, such as reformative justice, restitution, reparations, and the reframing of America’s historiography regarding slavery justice can be achieved.
Reparations for structural, systemic racist practices and consequences must also take the form of revealing the truth, and to this extent… symbolic reparations, such as apologies, memorials, and commemorations in the absence of showing slavery’s truthful history, would be a meaningless, cynical, and a disingenuous gesture. The combination of equitable remedies and legal remedies… will communicate to victims and society that the United States is committed to addressing the root causes of past violations and is pledging not to let it happen again. Thus, as America’s society bears the responsibility for resolving structural, systemic racist practices… victims are entitled to compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
The Phillipsburg Proclamation emancipated Revolutionary War-era slaves on June 30, 1779, during English rule and this is a stubborn fact. The British exercised plenary authority, and all enslaved black colonists were conferred liberty and subjecthood… even the Africans under English law. The Declaratory Act of 1766 nullified and voided all colonial statutes and related regulations, making slavery non-existent in the Kingdom and resetting all blacks either to English subjects or indentured servants under the English rule of law. Moreover, since the Act was never repealed, it remained in force until Great Britain released its claims and rights over the colonies by signing the Definitive Treaty of Peace in 1783. The treaty called for all British subjects to be released, including black Englishmen and English indentured servants. However, the newly formed American government broke the treaty by refusing to release England’s black subjects and then claiming blacks as America’s chattel property. The mere fact that Great Britain never relinquished, renounced or surrendered the liberty of its English subjects living in America to the newly formed government established a knowing and intentional breach of peace by America, which provided criminal intent in the unlawful detainment and kidnapping of English subjects, which later served as America’s slave pool.
Furthermore… by the contemplation of English law, blacks who suffered as slaves during colonial times were returned to status quo ante… they enjoyed all rights and privileges announced in England’s Magna Carta and reaffirmed in each colonial charter. The controlling, stubborn fact, the ending date of British rule was the sine qua non for the Definitive Treaty of Peace in 1783. This means… all 500,000 Revolutionary War-era blacks should have been “set at liberty” by America.
Ida B. Wells Center on American Exceptionalism and Restorative Justice supports H. R. 40… The Commission to Study and Develop Reparation Proposals for African-American Act and the ultimate implementation of a comprehensive restorative justice program. However, any restorative justice program or initiative requires re-examining historical events and reestablishing the situation before the harm occurred. This is an inescapable and necessary first step. This first step will help the public to fully understand the actual circumstances and facts surrounding U.S. slavery and realize that England’s Parliament repealed colonial slave statutes and laws in 1766 by legislative action. All such laws were then judicially struck down in 1772 by the Somerset Decision. Later England liberated 500,000 Revolutionary War-era blacks, yet, they were criminally enslaved in violation of international law. This contaminated America’s slavery pool.
The stubborn facts are colonial slave statutes, and the North American colonial assemblies’ laws were “utterly null and void” during colonial times. The Declaratory Act of 1766 legislatively abolished and voided all colonial slave statutes, laws, and related regulations “in all cases whatsoever.” Afterward, “American Laws” (colonial slave statutes and laws) were judicially struck down by 1772 by the ruling slavery was not “allowed and approved by the laws of this Kingdom” in the James Somerset v. Charles Stewart case. The colonial legislative assemblies never secured the permission of England’s King to enact colonial slave laws. His unwillingness to give his “assent” to colonial statutes was prominently highlighted in the Declaration of Independence in July 1776. Moreover, England exercised plenary power when it liberated Revolutionary War-era blacks in 1779, and according to the terms of the Definitive Treaty of Peace, British rule was conceded. Thus the U. S. was legally obligated to set all 500,000 Revolutionary war-era blacks free.
This will help stakeholders identify, articulate accurately, and define a meaningful restorative justice program or initiative and direct policymakers on the practical, legal, financial, and procedural challenges involved in designing and implementing a fair, honest, and durable program. Colonial slavery was criminal and a product of British corruption, colonial tyranny, and slaveholding Patriots and others were complicit.
Just two generations ago, President John F. Kennedy observed that “the great enemy of the truth is very often not the lie, deliberate, contrived, and dishonest… but the myth, persistent, persuasive, and unrealistic. Too often we hold to the cliches of our forebears… we enjoy the comfort of opinion without the discomfort of thought”.
Committed to the discomfort of thought and optimistic about America’s future… Ida B. Wells Center on American Exceptionalism and Restorative Justice, in partnership with Sons and Daughters of the Enslaved, a not-for-profit public policy organization, has begun work aptly titled SEA-CHANGE. This will be a constellation of white papers, debates, lectures, software, and services developed using valued metrics through Scholarship, Engagement, and Action to challenge, disabuse, and correct historical myths and misapprehensions regarding U. S. The purpose of this collaborative engagement is to catalyze reconciliation, historical integrity, and accuracy through the creation of a civic, judicial, societal, educational and historical sea change in the United States and beyond.