Why Pull on this Old Historical Thread
Blacks born in colonial North America were British citizens by birth. They were deemed “children of the King” protected by a 1350 “Statute for those who are born in Parts beyond Sea.” Further, as provided in Virginia’s colonial charter of 1606 and each of the twelve additional colonial charters, in relevant part: “Also we do, for Us, our Heirs, and Successors, DECLARE, by these Presents, that all and every the Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purpose, as if they had been abiding and born, within this our Realm of England, or any other of our Dominions.”
England’s Magna Carta of 1215 and common law had long declared “one may be a villien in England, but not a slave.” In 1569, Cartwright, was observed savagely beating a man, which in law would have amounted to a battery, unless a defense could be mounted. Cartwright claimed the man was a slave whom he had brought to England from Russia, and thus such chastisement was not unlawful. However, the court rejected the defense and held that the man must be freed, and it is often said that the court held “that England was too pure an air for a slave to breathe in.” The protections and birthrights conferred unto native sons of England began in the 13th century… over four hundred years before the first recorded person of African ancestry was born in British North America during the early 17th century. No one was above or below English law, and no Englishman could be born a slave.
Elizabeth Key is the who behind hereditary slavery. Key was born in 1630 in Warwick County, Virginia, to an indentured African woman. Her white father, Thomas Key, was born in England, and he came to Virginia in 1616 and was considered a pioneer tobacco planter. He was elected to Virginia’s legislative assembly, the House of Burgesses, representing Warwick County. The wealthy Key denied paternity, a court proceeding followed, and he was ordered to take responsibility for her. Under English law, fathers were obligated to care for their children, even if they were illegitimate. Key then took responsibility for Elizabeth, arranging for her baptism in the Church of England.
In 1636 Key decided to move back to England, and he made arrangements for Elizabeth’s godfather Humphrey Higginson to be her guardian for nine years. He stipulated that Higginson should treat Elizabeth like a family member and grant her freedom at fifteen. But Higginson did not keep his commitment to Elizabeth after elder Key died later that year. Instead, Higginson sold Elizabeth to Colonel John Mottram, for whom she was required to serve the balance of her nine-year term before being released from bondage. Mottram took her to Northumberland County, and while there, she had a son with a young white lawyer named William Grinstead, an indentured servant himself.
After Mottram died in 1655, Elizabeth sued for her freedom after the executors of her late master’s estate classified her and her infant son as “negroes” and part of the estate’s property assets to an indentured servant with a free-born child. Unwilling to accept permanent servitude, Elizabeth petitioned the colonial court for her freedom, as she had already served as an indentured servant for nineteen years.
Elizabeth claimed she was free-born under English common law as the father’s position defined children’s status. Elizabeth argued that as her white father was free-born, she could not be born into slavery. England’s common law tradition of partus sequitur patrem was unambiguous, and Elizabeth was granted freedom, along with her son.
The Declaratory Act of 1766
The colony of Virginia in British North America prohibited slavery within the colony… and no one was above or below English law. English law was why the first 19 black people kidnapped from Africa were indentured servants, not slaves, in 1619. This was not by luck… instead, slavery was not approved or authorized within the colony of Virginia by English law during these times… and colonial Virginia’s lawgivers were adhering to English law. Moreover, under Virginia’s colonial charter, Virginia’s legislative assembly, the House of Burgesses could not enact colonial statutes or regulations “repugnant” to English law. All such laws and regulations required the consent of England’s King.
Virginia’s kidnapped Africans… after a proscribed period of indentured servitude were granted freedom and became English colonists. Blacks born in the colony of Virginia had birthright British citizenship by an English common law tradition called jus soli—the same as the white European colonists. They were deemed “children of the King,” protected by a 1350 “Statute for those who are born in Parts beyond Sea.” These ancestral English birthrights were deemed an irrevocable and binding contract between the King and children born within its sovereign realm. However, in 1662 Virginia’s House of Burgesses purported to enact colonial statutes and laws called partus sequitur ventrem that placed colonists of African ancestry below English law; it made “children of the King” slaves at birth.
During this time, the British monarchy, among other things, was not honoring the terms of the binding contract to protect children born within the Kingdom. Moreover, how King James II ruled the Kingdom and his Catholicism led to the Glorious Revolution of 1688. King James II was deposed. Then his daughter Mary II and her husband, William III, Prince of Orange and stadholder of the United Provinces of the Netherlands, ascended to the throne. The following year, the British Parliament declared parliamentary sovereignty and enacted the English Bill of Rights of 1689. This Act of Parliament incorporated in law the conviction that although some people may inherit privileges, all English citizens have “basic rights”… in particular, liberty that could not be taken away, abolished, or changed by the government, in the absence of the due process of English law. These “basic rights” were inured to black colonists and their children born in colonial America, as Parliament did not take this opportunity to exclude them. Moreover, England was “a nation of laws, not men” and “no one was above or below English law.” Thus, by way of the English Bill of Rights of 1689, Parliament codified “basic rights” upon black people living in colonial North America.
Concurrently, England had invested in domestic manufacturing, hoping to decrease imported goods and increase exports. The colonies in North America were valuable players as providers of raw materials. As a market for English goods, Parliament passed a series of laws limiting colonial trade for England’s benefit, and in May 1696, King William III created the Board of Trade to administer these laws and supervise colonial trade. This caused tension since many British colonials ignored mercantile restrictions. However, a series of wars between England and France disrupted Atlantic commerce. British colonials were forced to ship goods like tobacco, indigo, and sugar in convoys escorted by the Royal Navy.
Warfare impacted colonial America as it severely cut the tobacco trade. This downturn caused colonists in North America to raise more sheep, grow cotton, and weave their cotton and woolen cloth. To maintain a market for English material and preserve tobacco production, which yielded substantial excise taxes for England, Parliament enacted the Woolen Act of 1699. The Act allowed colonists to manufacture cloth… but not to export it, even to other colonies. As this legislation and the subsequent Hat Act (1732) and Iron Act (1750) constrained colonial industry, Parliament laws taxing foreign goods shaped colonial consumption.
However, a black-market economy existed, where vast sums of money flowed to England and colonial America. For example, New Englanders and others profited greatly from illegally trading fish and lumber to French possessions in the Caribbean, which sent rum, sugar, and molasses to the west coast of Africa, which then sent slaves to colonial America; as a result, New Englanders could purchase a higher quantity of British goods. Due to an unofficial policy of salutary neglect, as long as colonial America’s exports fueled British prosperity, the Crown would and did focus its attention elsewhere.
In 1732, Parliament enacted the Debt Recovery Act, responding to British merchants’ complaints that colonial customers, particularly Virginia planters, refused to pay their debts. The Act allowed creditors to seize land and chattel. Then, as their debts mounted in the 1740s, planters first won relief from Virginia’s House of Burgesses in the form of a law exempting land from seizure unless pledged by mortgage and setting an artificially low rate of currency exchange. Virginia’s law allowed residents to pay sterling debts in Virginia currency at a favorable rate charged by local courts. Virginia’s law undermined the authority and power of Parliament, creating legislative tension and conflict.
Further, Virginia juries rendering biased verdicts exacerbated the tension. They exposed the contradictions between the colonists’ control of local political and legal institutions and the coercive imperial laws of trade and navigation. The contradictions sparked a policy change. England abandoned salutary neglect in favor of a new system, imperial administration, which focused on parliamentary taxation and bureaucratic regulation. And in 1753, England’s Privy Council directed colonial governors to appoint judges contingent “upon the pleasure of the crown” so they could easily be removed from office. This way, being disenchanted with colonial control of local political and legal institutions, Parliament elements were committed to repealing colonial statutes and laws and recalibrating the colonial legislative assemblies’ devolved lawmaking power.
Parliament’s consternation resulted in the Declaratory Act, which reaffirmed parliamentary sovereignty over the American colonies by proclaiming, in relevant part:
“Whereas several of the houses of representatives in his Majesty’s colonies and plantations in America, have of late against law, claimed to themselves, or to the general assemblies of the same, the sole and exclusive right of imposing duties and taxes upon his majesty’s subjects in the said colonies and plantation, and have pursuance of such claim, passed certain votes, resolutions, and orders derogative to the legislative authority of parliament, and inconsistent with the dependency Of the said colonies and plantations upon the crown of Great Britain”… “in this present assembled, and by the authority of the same, THAT the said colonies and plantations in America have been, are, and of right ought to be, subordinate unto, and dependent upon the imperial crown and parliament of Great Britain”… “and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever”.
“And be it further declared and enacted by the authority aforesaid. That all resolutions, votes, orders, and proceedings, in any of the said colonies or plantations, whereby the power and authority of the Parliament of Great Britain, to make laws and statutes as aforesaid, is denied, or drawn into question, arc, and are hereby declared to be, utterly null and void to all in purposes whatsoever.”
The phrasing in the Declaratory Act of 1766 was demonstrative and unambiguous. In other words, colonial legislative assemblies were “subordinate” to Parliament, and Parliament had the absolute power to make laws and changes to the colonial government, “in all cases whatsoever.” Moreover, “all resolutions, votes, orders, and proceedings” in the colonies that denied or questioned Parliament’s power and authority to make binding laws were “declared to be, utterly null and void to all in purposes whatsoever.” This Act of Parliament reaffirmed, Parliament could pass any law, statute, or act upon the colonies, and the colonists would have to deal with it.
Furthermore, the Declaratory Act of 1766 turned all colonial slave statutes and related regulations into legal nullities during colonial times. In being an act of Parliament, it had the immediate force of law. Moreover, all colonists and everyone within the North American colonies was legally bound by this Act. To wit, all hereditary slave statutes and related regulations were rendered inert by the Declaratory Act of 1766.
However, the colony of Virginia and all other colonial legislatures were complicit in colonial tyranny, corrupt government practices and engaged in criminal behavior during colonial times that created and sustained hereditary slave practices. History supports… colonial America’s legislatures did not possess the plenary authority to enact slave statutes or related laws, nor did they have the power to change England’s patrilineal descent system or to pass the statute called partus sequitur ventrem that enslaved a person who was born in an English colony at birth. These hereditary slave statutes and related regulations were “repugnant” to English common law and were inconsistent with the colonial legislative system’s bicameral character, authorized by the colonial charter.
Ida B. Wells Center on American Exceptionalism and Restorative Justice (Wells Center) is committed to challenging the underreporting and skewing historical events, historical misapprehensions, and falsehoods with Scholarship, Engagement, and Action. We believe that by exposing U. S. slavery’s criminal origins and by explaining how Parliament’s enactment of the Declaratory Act of 1766 is the linchpin legislation that rendered all colonial slave statutes, laws, resolutions, orders, and related regulations “utterly null and void to all in purposes whatsoever” before a rebellious crisis was ignited within the North American colonies… a gateway can be opened to allow for constructive discourse on topical issues like reparations, structural and systemic racism, white supremacy ideals.
Further evidence proves the Wells Center’s stance by which the Twelve Judges of the Court of the King’s Bench affirmed parliamentary sovereignty and judicially struck down hereditary slave statutes and related regulations by declaring slavery was not “allowed and approved by the laws of this Kingdom.” That slavery can only be a lawful state and condition in the Kingdom if authorized by “positive law in the Somerset v. Stewart case in 1772. This case and the Declaratory Act coupled with a commitment to study colonial slavery in America honestly could create an equitable path to a fair restorative justice program for the horrors of U. S. slavery.
The colony of Virginia and all other colonial legislatures were complicit in colonial tyranny, corrupt government practices and engaged in criminal behavior during colonial times that created and sustained hereditary slave practices. However, all such hereditary slave statutes and related regulations were rendered inert by the Declaratory Act of 1766. History supports… colonial America’s legislatures did not possess the plenary authority to enact colonial slave statutes or related laws, nor did they have the power to change England’s patrilineal descent system or to pass the statute called partus sequitur ventrem that enslaved a person who was born in an English colony at birth. These hereditary slave statutes and related regulations were “repugnant” to English common law and were inconsistent with the colonial legislative system’s bicameral character, authorized by the colonial charter.
Furthermore, the Declaratory Act of 1766 turned all colonial slave statutes and related regulations into legal nullities during colonial times. In being an act of Parliament, it had the immediate force of law. Moreover, all colonists and everyone within the North American colonies was legally bound by this Act. Everyone acted as if they were, as there was no organized opposition to the Declaratory Act of 1766. Additionally, the Twelve Judges of the Court of the King’s Bench affirmed parliamentary sovereignty and judicially struck down hereditary slave statutes and related laws and regulations by declaring slavery was not “allowed and approved by the laws of this Kingdom.” That slavery can only be a lawful state and condition in the Kingdom if authorized by “positive law” in the Somerset v. Stewart case in 1772.
The James Somerset Habeas Corpus Case
The long arc of justice swayed favorably for black colonists suffering as slaves when Afro-Englishman James Somerset, chained aboard a slave ship heading to Jamaica, was granted a writ of habeas corpus December 1771. Lord Chief Justice Mansfield of the Court of the King’s Bench issued the writ. It held original jurisdiction over colonial laws’ constitutionality and disputes between colonial legislative chambers and the monarch.
At the resulting habeas hearing on January 21, 1772. Without regard to the legislative avoidance of colonial slave statutes five years earlier by the Declaratory Act of 1766, Charles Stewart claimed lawful ownership of Somerset based upon Virginia’s slave statutes and laws. Somerset’s lawyers disagreed and moved England’s high court to be granted leave to prepare a formal response to this ownership claim. The request was granted. Lord Mansfield was settled on the law but was cautious. There would be vast economic consequences throughout Great Britain and, in part, based upon his family situation. He cared for a bi-racial grandniece named Belle, who was born a slave under Jamaica’s hereditary slave law. She was the out-of-wedlock daughter of his nephew John Lindsay and lived at his family’s home – Kenwood House. Lord Mansfield was confident that this aspect of his life would be politicized and exploited… if he solely declared James Somerset free. Such were motivating factors as to why he first urged Stewart to free Somerset voluntarily… but Stewart was adamant: he would not.
The imperial political implications of the Somerset case were top of mind for Lord Chief Justice Mansfield, who had recently presided over a criminal assault case Rex v. Stapylton (K.B. 1771, unreported) the same year, where a criminal defendant proffered a slave ownership defense. Lord Mansfield knew that this defense would fail under controlling English law. Thus, Lord Mansfield had subtly nudged the white defendant Robert Stapylton to settle with the black victim, Thomas Lewis. Mansfield explained the exacting standard of proof he faced, and he on the record: “being black will not prove the property.” However, Stapylton was unpersuaded, and he did not voluntarily release Lewis, nor did he sustain his burden of proving his lawful ownership of Lewis. Stapylton was found guilty of the crime of assault. The ruling in the Stapylton case was controlling legal precedent for resolving the Somerset case, and Lord Mansfield’s comments to the jurors that “I think you have done very right. I should have found the same verdict… for he was not the property” were instructive of his views and sentiments.
The record supports that Stewart bought this Virginia-born person named Somerset in the colony of Massachusetts in 1749 and John Dunning… Stewart’s lawyer pressed England’s high court to confer full faith and respect upon Massachusetts and Virginia’s slave statutes and laws. He argued, “…the law of the land of that country disposed of him as property, with all the consequences of transmission and alienation”. This was a feckless argument, giving the Declaratory Act of 1766. Then William Davy… Somerset’s lawyer sarcastically quipped, “Concerning the laws of Virginia”… “do they bind here? Have the laws of Virginia any more influence, power, or authority in this country, than the laws of Japan?” “Either all the laws of Virginia are to attach upon” people “here, or none, for where will they draw the line?” The legitimacy of colonial slave statutes was centrally argued, litigated and conclusively resolved in the Somerset case… however, Stewart did not sustain his burden of proving his lawful ownership of Somerset. Moreover, England’s Parliament had never enacted a law allowing and approving slavery.
Then on May 14, 1772, Somerset’s lawyers argued slavery was a legal fiction in Great Britain and, by extension, colonial North America. And while Massachusetts and Virginia’s colonial assembly might have passed laws permitting slavery, these colonial statutes, laws, and regulations were extralegal in the Kingdom and a nullity under English law. Somerset’s lawyers focused on legal issues rather than humanitarian principles. Mansfield then said, “…Let justice be done, though the heavens may fall…” and reserved the question: is slavery a lawful institution in the Kingdom of Great Britain to the Twelve Judges Procedure… more than a month out. This also gave Stewart additional time to reconsider. However, Stewart did not change his mind.
Lord Mansfield referred the Somerset case to an off-the-record panel of English justices. The case was decided following the Twelve Judges Procedure. The four judges of the Court of the King’s Bench, four judges of the Court of the Exchequer, and four judges of the Court of Common Pleas were impaneled. Lord Mansfield presided as one of the twelve justices. Under English law, the Twelve Judges procedure was used to address significant points of law, such as parliamentary sovereignty over colonial America and to interpret statutory words. Moreover, the twelve-judge decisions constituted lawmaking in two ways: (1) they settled the meaning and limits of the statutory language, applied to fact situations, and (2) they established controlling rules of procedure and evidence. The Twelve Judges’ decisions had a kingdom-wide effect and established precedents and procedures that would govern like cases.
On June 22, 1772… Lord Mansfield announced the Twelve Judges’ unanimous decision, declaring parliamentary sovereignty and that slavery was not “allowed and approved by the laws of this Kingdom” and could only be lawful by “positive law.” British imperial politics announced standards and procedures more urgent for slave-holding colonists since all were still violating colonial charters and English law by continuing colonial slave practices in the wake of the Declaratory Act of 1766.
The Somerset decision was not an infringement upon colonial rights since slavery was prohibited on British soil and the Sedition Act of 1661 criminalized the putative enactment of a law without the King’s permission. In furtherance of sustaining his burden of proof, as Stewart claimed, Massachusetts and Virginia’s slave statutes and laws were still lawful promulgated slave statutes. In effect, Stewart was obligated to prove that he lawfully owned Somerset based upon colonial statutes. This meant that he questioned Parliament’s power and authority to legislatively avoid “repugnant” colonial slave statutes and laws by way of the Declaratory Act of 1766. Further, Stewart had the impossible task of proving colonial slavery was the product of “positive law.” But colonial legislative assemblies did not lawfully enact colonial statutes (1) that decriminalized the Act of kidnapping; (2) did not legally change the patrilineal descent system to facilitate a hereditary slavery scheme and (3) did not lawfully change and broaden the legislative power of colonial assemblies to enact municipal laws without the monarchy’s permission.
Historians and legal scholars have probed the significance of the Somerset decision for almost 250 years. However, their circumscribed interpretations of the Somerset decision have blithely ignored the Declaratory Act of 1766 legislatively avoidance of “repugnant” colonial slave statutes and laws. Further, none have focused on the threshold inquiry and exacting standard of proof slaver Stewart faced of proving legal ownership of Somerset and his failure to sustain his legal burden. This has led many to conclude that the Twelve Judges in the Somerset case “found the law on slavery in a state of confusion, and that is precisely where he [Mansfield] left it.” Further, they had claimed colonial slave statutes and laws were not the legal underpinnings of slaver Stewart’s ownership claim, as he did not expressly rely upon colonial enacted slave statutes and laws, classifying the colonial-born Somerset as his property, with no right to due process of English law. This is a meritless argument. Stewart’s ineffectiveness in sustaining his burden of proof at trial does not mean that he did not rely upon the presumed legality of colonial slave statutes. Moreover, Stewart did not need to expressly rely upon colonial slave statutes and laws to put this issue before the Twelve Judges, even though he did.
The Twelve Judges did address the lawfulness of colonial slave statutes and laws. This is true since Parliament’s Declaratory Act of 1766 legislatively avoided colonial slave statutes and laws and recalibrated colonial legislative assemblies devolved power to enact laws in 1766. English law made Virginia’s slave statutes and laws “utterly null and void to all in purposes whatsoever.” Under the English Bill of Rights of 1689, Parliament… had previously declared its supreme power over the colonies: parliamentary sovereignty. Parliament’s Act imbued that body 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, Stewart claimed Virginia’s colonial slave statutes and laws created a property right in a colonial-born black, and the court should give full faith and respect to American Laws. This claim could only have merit if the Court of the King’s Bench struck down Parliament’s Declaratory Act of 1766 that legislatively avoided and rendered “utterly null and void” all “repugnant” colonial statutes and laws seven years earlier by way of Parliament’s Declaratory Act of 1766.
The Somerset decision declared slavery was not “allowed and approved by the laws in this Kingdom” and could only be lawful in the Kingdom by “positive law,” a law enacted by England’s Parliament. And it is as scholar David Brion Davis in his book titled, Inhuman Bondage: The Rise and Fall of Slavery in the New World have concluded that the decision “removed any legal basis for slavery in England,” and that it made it “no longer possible to take for granted the universal legality of slave property.” Over the years, legal scholars must have known that as the slaver Stewart claimed ownership of Somerset based upon Virginia’s slave statutes and laws were “utterly null and void to all in purposes whatsoever,” as well as the other twelve colonies in North America… the Somerset decision became controlling precedent. These legal scholars must then have known that the Declaratory Act of 1766 declared parliamentary sovereignty and that the decision did bind the colonies in North America. The colonial charters, the legislative history, and the enumerated grievances in the Declaration of Independence all support this conclusion. Thus, all colonial slave statutes, laws, and related regulations were judicially struck down as legal nullities.
Lord Mansfield was a member of a panel of judges who decided the Somerset case, yet he emerged as the sole judge, and he dutifully accepted credit and recrimination. It was not hubris on Lord Mansfield’s part to take responsibility for the Somerset decision. This was no accident. A careful student of history would realize that since he and no other judge who was a member of the Somerset panel ever disabused the public of this material misapprehension, larger imperial forces were at work.
Declaration of Independence Changed Nothing
In her book American Scripture: Making the Declaration of Independence, early American constitutional scholar Pauline Maier made the observation “the same argument that denied kings an inherited right to rule denied the right of masters to own whose status was determined by birth not consent” in the American colonies. This doubly true since slavery was the product of corrupt colonial government officials. Subversion of the rule of English law gave rise to colonial tyranny, the tyranny of unscrupulous men. Furthermore, Parliament’s Declaratory Act of 1766 legislatively avoided all repugnant colonial statutes and laws. The Somerset decision judicially overturned and abolished colonial slave statutes and laws four years before the Declaration of Independence in July 1776.
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.
Slavery within the American colonies was anathema to English law. It created an ethos of hooliganism and a species of colony tyranny. Hereditary slavery was a chief consideration that drove Lord Mansfield to issue the writ of habeas corpus in the Somerset case and refer the case to a Twelve-Judge panel for Kingdom-wide implications upon the legal question of the lawfulness and efficacy of colonial slave statutes and laws within the Kingdom. Lord Mansfield’s actions were manifestations of England’s imperialism and its abandonment of salutary neglect’s unwritten policy. America’s founding generation understood the intent and legal consequence of the Somerset decision.
Further, a careful reading of Thomas Jefferson reveals that he set-forth the southern colonists’ fear of setting loose on society a race of “inferiors” that would undermine all social institutions. Such was the reason that he concurrently advocated supplanting English law with Roman law while drafting the Declaration of Independence in the summer of 1776. The founding generation knew slavery was criminal on the eve of the Declaration and nothing was more illustrative of their guilty knowledge than Jefferson’s accusation in the Declaration that the King was:
“. .. exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them: thus paying off former crimes committed against the Liberties of one people, with crimes which he urges them to commit against the lives of another”.
Although this language was edited out of the Declaration by Jefferson’s seasoned colleagues, they yoked black bondage upon unsuspecting white colonists. The founding generation’s social institutions were built upon the extralegal practice of hereditary slavery, and as each colonial assembly had failed to secure the King’s “Assent” to “wholesome” promulgated colonial slave statutes and laws…the Declaratory Act of 1766 legislatively avoided colonial slave statutes and laws… but the British failed to hold offending colonials to account for their criminal behavior. The active corruption of colonial government and failure to cease criminal behavior after the Declaratory Act of 1766 speaks volumes. In failing to promulgate positive slave law, it follows that those enslaved by white colonists throughout the 17th and 18th centuries retained their rights as Englishmen, even as they were treated as “chattel property” during colonial rule by white English colonists.
The American colonies were not sovereign nations unto themselves, with a separate and distinct constitutional system. Their colonial charter bound all the American colonies to English law, and none lawfully exercised the power of positive municipal law to enact slave statutes and laws. The core misapprehension, or possible legerdemain of constitutional scholars and historians, has been construction and refusal to begin at first principles. The rule of law officials made the first nineteen Africans indentured servants-not slaves in 1619. This status was consistent with English law. The colonial assemblies were legally bound by colonial charter to secure the King’s “Assent” to create a legal condition called “slave.” In failing to seek or otherwise secure the King’s “Assent” on colonial slave statutes and laws, they were not lawfully promulgated “positive laws.” The colonies proceeded at their peril when they acted as if these facially defective colonial slave laws were lawful and built their social institution upon slavery.
The First Congress adopted English-law post Declaration in 1776, and black Englishmen were not carved out nor somehow exempted. Without regard, independence and American citizenship inured to black people in colonial America, in the same manner as it did for white Englishmen. It is ahistorical to claim differently. Under English law, white colonists had no more extraordinary legal powers or rights or British citizenship status than black British colonists. Black colonists, as Englishmen, had a legal right to leave the U. S. per the Definitive Treaty of Peace. America’s claim that Carleton violated the treaty by relocating 3,000 legally free black Englishmen to Canada is unsupportable. It was a verifiable treaty violation by the U. S., who after Carleton indicated in the spring of 1783 his country’s commitment to transport black loyalists away from U. S. soil-without legal justification or right, the U.S. prevented their departure.
The legal historian William Wiecek in his seminal article… Somerset: Lord Mansfield and the Anglo American World states that the Somerset Decision “posed basic constitutional problems for the British imperial system, though these became irrelevant four years later with the declaration of American independence…” He concludes that the question of Somerset’s force under the imperial Constitution became academic with the Declaration of Independence. However, the threshold problem with Wiecek’s claim is that the First Congress adopted English law in 1776 and effectively adopted the same constitutional issues faced by the British. The U.S. continued its legal ties to Somerset. Also, six-year before the Somerset decision… Parliament passed the Declaratory Act of 1766 and had legislatively avoided all colonial statutes, laws, resolutions, orders, and related regulations which were “repugnant” to English law. This Act made it clear that Parliament should “legislate over the colonies in all cases whatsoever.” Further, as the Court of the King’s Bench had original jurisdiction over the colonies, the Twelve Judges procedure could and did resolve the U. S. claim that Revolutionary War-era blacks were lawfully owned by Americans and not entitled to be set at liberty, like white English prisoners per the Definitive Treaty of Peace, ratified January 14, 1784.
The Court of King’s Bench had the legal authority to rule colonial slave laws violated colonial charters in 1772. Dunmore had the legal power to liberate all black slaves in 1775. Further, the First Congress stated in the Declaration… resolves that “the respective colonies are entitled to the common law of England.” Such makes it plain; the Founding Fathers were not endeavoring to distance themselves from English law. The adoption of English law, which did not carve out Somerset, is dipositive proof that the Twelve Judges’ judicial construction was binding upon the U. S., even if the Somerset decision was subject to some prospective bar or an affirmative defense. The thirteen states in 1776 continued Somerset’s binding authority, as one of the first legislative acts undertaken by each of the newly independent states was to adopt a reception statute that gave legal effect to the existing body of English law and Somerset. Lastly, British General Henry Clinton issued an unambiguous emancipation proclamation that liberated all black slaves living within the American colonies.
The Definitive Treaty of Peace in 1783 conditioned a status quo antebellum peace, and Congress ratified it in January 1784. The two parties agreed that no side would gain from the conflict. The U.S. did not come through the American Revolution with greater rights over black people and could not ex post facto turn black people into slaves. They were free-born Englishmen when the U. S. became an independent nation in 1784: they too were returned to status quo antebellum under English law. This was the legal consequence of the status quo antebellum treaty. The preliminary Treaty of Paris of 1783 that ceased “hostilities” was signed in November 1782. It was not well-received in England as it created political turmoil that forced the head of its imperial government Lord Shelburne to resign. A new government was then formed under the Duke of Portland, who replaced England’s treaty negotiator Richard Oswald with David Hartley. He sought to modify the treaty… but Hartley was unsuccessful. Thus, the preliminary treaty was pretty much static and unchanged when Congress ratified the Definitive Treaty of Peace on January 14, 1784.
Pulling on an old historical thread will promote Scholarship, Engagement, and Action impacting topical questions of birthright citizenship, institutional racism, and white supremacy dogma… all by-products of British colonial times. Without dispute… it was a seminal event when the U. S. Congress ratified the Definitive Treaty of Peace… and bound all American states and their American citizens to the British rule of law. Thus, all Revolutionary War-era blacks should have been liberated.
History supports… The Somersett decision repudiated the notion that colonial slave statues and laws were entitled to full faith and respect. The decision rendered all colonial slave laws judicially void because the high court declared slavery could only be lawful in the Kingdom by “positive law”… and [slavery was not] “allowed and approved by the laws of this Kingdom.” This ruling coupled with the Declaratory Act of 1766 zeroed out all slave statutes and related regulations and laws within the Kingdom. The slave-holding colonists in North America had nowhere to retreat to since colonial slavery was not the product of lawfully promulgated municipal laws. These are all inconvenient historical truths, and in challenging the underlying claims and pulling on an old historical thread, the Ida B. Wells Center seeks to engage academics, educators, researchers, public policy leaders, and world-wide thought-leaders… to force constructive engagement, academic debate, and policy solutions with revealed truths.
Furthermore, critics do mock the notion of American exceptionalism as being a “state fantasy,” … “a myth,” and “legal isolationalism.” Russian President Vladimir Putin mused to U. S. President Barack Obama that “it is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation.” Foreseeably, they question… “how exceptional can you be whenever major problem you face requires joint action,” as Roger Cohen penned in a 2008 article titled Roger Cohen: Palin’s American Exception. And while proponents and opponents alike use the term exceptionalism to describe a tendency of varied political interests to view America as being elevated “above” or an “exception” to the law, specifically… the law of nations… international law. This perspective is supported by the U. S. actions in 1783 concerning the Definitive Treaty of Peace… America’s first international treaty and the attending enumerable claimed violations of international laws.