Brilliantly orchestrated by Lord Chief Justice Mansfield… the unanimous decision of His Majesty’s King’s Bench in the Somerset case in 1772 delivered a mortal blow to slavery within the North American colonies. England… a unitary state, governed by its Parliament never conferred plenary authority unto any of the North American colonies to enact “positive law” to legitimize slavery within their borders. And in fact, the colonies within North America were specially constrained by colonial charter to a bicameral legislative structure that required the King’s assent to even enact positive municipal laws. People with African ancestry born within the North American colonies during colonial times were free-born British subjects under English law. However, England’s policy of salutary neglect, colonial tyranny and wide-spread corruption of government placed Afro-Englishmen below English rule of law. This gave rise to the extralegal condition of slavery within the North American colonies.
Legal historians such as Leonard W. Levy and Kenneth L. Karst concluded in the Encyclopedia of the American Constitution that the Somerset Decision has consistently been the rule of law “because the precedent had become part of America’s common law.” The Somerset decision was the rule of law during colonial times. Nonetheless, and without legal arguments, support, or proof… slaveholding Englishmen living in the North American colonies claimed they were not bound by the decision even though the High court specially analyzed American slave law. Slaveholding colonists who became Patriots of the Revolutionary War never released Afro-Englishmen. Moreover, they never substantiated their bare ownership claims of other colonial Englishmen.
The Revolutionary war was an insurrection by Patriots in the thirteen North American colonies to English rule that resulted in independence. However, English settlers in the North American colonies were split and not singularly in favor of independence or republicanism during the mid-1770s. Although some believed the American colonies did not benefit from being part of His Majesty’s Kingdom… loyalists thought differently. But, a majority of English subjects were undecided, totally indifferent the summer of 1776. Nevertheless, in early July, lawmakers from each of the thirteen North American colonies convened and approved a final version of the Declaration of Independence, written for the most part by Virginia’s Thomas Jefferson. It was a clarion call… a compact by and between Englishmen in the North American colonies all citizens would be equal in this new nation called the United States. A bargain was struck by and between American colonists and it was the formal beginning of another English civil war.
In the summer of 1776, America’s Patriots committed themselves to creating a new government… the United States of America, dedicated to a tandem proposition that this new republic would be “a government of laws, not of men” and “no one is born to rule or be ruled”. This was a new form of sovereignty, and inescapably, if their vision was to be realized it required doing away with King George III at the top—who was born to rule and slaves at the bottom—who were ruled by slave masters. However, Patriots who were slave masters from southern colonies had different ideas and advocated for slavery. And surprisingly… the Patriots showed great flexibility on this point and were in fact willing to support the continuation of slavery. But if English law was adopted by the First Congress, as it was being strongly advocated… Thomas Jefferson foresaw major legal problems ahead, as he worked on his final draft of the formal Declaration, to be ready when the First Congress votes on the pressing issue of independence that coming July. Decidedly, Jefferson saw no way in which slavery could exist in the United States under English law… and he was certain that the criminal horrors of colonial slavery and racial repression of Afro-Englishmen and others would come to stain and brand the emergence of the United States.
In the writing Empire of Liberty: The Statecraft of Thomas Jefferson the writers Robert W. Tucker and David C. Hendrickson makes the observations that Jefferson believed this new nation would be the bearer of a new diplomacy, founded on the confidence of a free and virtuous people, that would secure ends based on the natural and universal rights of man, by means that escaped war and its corruption. Thus, Jefferson sought a radical break from the traditional European emphasis on “reason of state,” which could justify any action, and the usual priority of foreign policy and the needs of the ruling family over those of the people.
In the book Slave Nation: How Slavery United the Colonies and Sparked the American Revolution writers Alfred and Ruth Blumrosen observed… while many patriots throughout the North American colonies professed to hold enmity towards slavery on moral grounds, all capitulated to proslavery interests for the sake of unity during the Revolutionary War-era. Further… the founding generation did so because they collectively benefitted from the continued exploitation of Revolutionary War-era blacks since slaveholding patriots were financing the rebellion and slavery would have a transcendent importance for the emerging economy of the United States. But Edmund S. Morgan viewed the coming together of the founding generation as an uneasy alliance of divergent ideologues, he observed: “The men who came together to found the independent United States, dedicated to freedom and equality, either held slaves or were willing to join hand 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.” And of course, truth of slavery’s origins and being struck down as not being allowed or approved by the laws of King George III’s kingdom by the Somerset Decision on the eve of America’s independence from England was an enemy of the revolution and feared by them all.
After the Declaration of Independence was ratified, the First Congress formally took up for debate Jefferson’s bill to adopt Roman law and to sever ties with England’s jurisprudence. The legislative hearing was full-throated, as Jefferson… a masterful orator attacked the wisdom of formally adopting English law. Then a congressional supporter stated… “[R]oman law offers this new republic an opportunity to develop a particular American jurisprudence, which would not be just a slavish imitator of the English common law that is hostile to many a man’s interest in this hall”. However, some Patriots bristled at looking to the Roman republic because it had collapsed and became an empire. Undaunted, Jefferson went on to argue Roman law would seamlessly accommodate a hereditary slavery regimen and the practice of slavery within its sovereign borders, which English law could not. Then he cautioned them, that if the United States lawgivers held fealty to English law… it would certainly cause the immediate release of Afro-Englishmen and their ultimate release under the controlling principal set-forth in the Somerset Decision. This was an obvious and a natural consequence of adopting English law.
Jefferson explained… all forms of slavery was unlawful under English law and Afro-Englishmen were countrymen, not slaves under English law. He noted subjecthood upon birth was contemplated and provided for in each colonial charter. Known as jus soli, any person born on British soil was a subject of England’s King, with rights under English law and entitled to the King’s protection. Jefferson had drawn upon the jus soli tradition when he penned the soaring phrase in the Declaration that “all men are created equal”. This liberty right was inalienable and a binding contract between the King and any child born in the Kingdom. This common law tradition of having natural-born subjecthood was based upon the notion that a child born within the realm would have a natural allegiance to the Crown and would owe a debt of gratitude to it… for protection provided during childhood. And it was under the jus soli tradition that the Patriots came to identify themselves as Englishmen, whom which the King had broken his pledge, empowering the Patriots to rebel against King George III and to declare themselves independent and to create a new nation.
Further, Jefferson observed… colonial legislatures lacked plenary authority to legalize slavery in colonial America in the 17th century and those claiming ownership of colonial slaves would be unnecessarily exposed if the First Congress adopts English law, as the Somerset Decision observed slavery could only be based upon the existence of positive law, release of all enslaved people would be required. However, once hearing about the shortcomings of English law and being fully advised in the premise and propriety of the adoption of Roman law, the First Congress rejected Jefferson’s bill. The United States Congress formally adopted English law based upon practical considerations. Some were… members of Congress were successful, late middle-aged English trained lawyers—not Roman lawyers. All harbored fears and few were positive that the Declaration of Independence would prove to be a success. Agreements, contracts, and deals needed to be quickly negotiated and entered with trading partners. And with respect to slavery, the corpus delicti of slavery was the slave, not any point different. The term corpus delicti… its meaning was “the body of the offense” during colonial times, thus changing English law to Roman law would not help.
Doubtlessly, Jefferson envisaged America becoming the world’s great “Empire of Liberty,” the model for democracy and republicanism as he said when he departed the presidency in 1809; “Trusted with the destinies of this solitary republic of the world, the only monument of human rights, and the sole depository of the sacred fire of freedom and self-government, from hence it is to be lighted up in other regions of the earth, if other areas of the earth shall ever become susceptible of its benign influence”. However, the First Congress adopted English law after declaring itself the legislature of this new sovereign nation in 1776… and struck all reference to King George III’s responsibility for colonial slavery in the Declaration of Independence causing Jefferson to forever complain that the actions of the First Congress “mangled” the Declaration of Independence, as he had based it upon the political philosophy of political theorist John Locke who posited that the most precious thing man has is property, defining it as Life, Liberty and Estate. In Locke’s terms… “property” encompassed material things as well as ownership of self, so a regimen of slavery and structural racist policies were not justifiable or sustainable.
Buried… truth was the first casualty of the Revolutionary War… that blacks living in the North American colonies were free people, with an unalienable right of liberty under English law and not slaves. The truth that it was the common law traditions of “no one is above, or below the law” and jus soli that conferred British subjecthood upon birth to all black slaves born in the North American colonies. Moreover, none of the 13 colonies had successfully enacted a colonial slave statute that survived His Majesty’s Court of the King’s Bench’s 1772 historic ruling that struck down colonial slave statutes in the Somerset Decision. However, myths were developed around the Declaration of Independence and they proved, as usual more enduring and longer lasting than the truth.
It was a dispositive matter that the First Congress of the United States and its slave mastering Patriots formally adopted English law, rejecting Thomas Jefferson’s bill to sever ties to English jurisprudence after the Declaration of Independence issued in July 1776. Jefferson had urged supplanting English law with Roman law, as it would seamlessly accommodate a hereditary slavery regimen and the practice of slavery within its sovereign borders, which English law did not. The controlling precedent of the Somerset Decision was and is dispositive precedent on the question of slavery’s illegality during colonial times and the legal status of Afro-Englishmen and other enslaved people post Declaration of Independence.