Tying Off Historical Knots
Slavery in the United States has a criminal origin, and it is the “fruit of the poisonous tree.” The “fruit of the poisonous tree” is a metaphorical expression whose origin is Anglo-American common law. The metaphor stands for the legal proposition that if the source of evidence (the tree) is corrupted or tainted, anything deriving from it (the fruit) will bear the same flaw. This applies to U. S. slavery (the fruit) since colonial slavery (the tree) was a criminal enterprise based upon colonial government corruption, graft, and colonial tyranny. Doubtlessly, U. S. slavery bears the same flaws as colonial slavery, and it could not have been lawfully inherited from British colonial rule based upon “colonial statutes” since the British imperial government abolished all “colonial statutes” ten years before the Declaration of Independence.
Yet U. S. slavery being a legal institution during British colonial rule is America’s public policy and serves as basic U. S. history, even though colonial slave statutes and racialized laws supporting slavery during colonial rule were not lawfully promulgated and were abolished by Parliament’s Declaratory Act of 1766 “for all purposes whatsoever.” Further, colonial slave statutes were repudiated by the British highest court, the Court of the King’s Bench in the James Somerset v. Charles Stewart case which declared slavery was not “allowed and approved by the laws of this Kingdom,” and that slavery in the Kingdom could only be legal by a “positive law,” which meant a statute, or a law enacted by England’s Parliament in 1772. This was four years before Parliament’s Declaration of Independence. Nonetheless, America’s Second Congress claimed black colonials were excluded from the Declaration because they were slaves.
Slavery was prohibited on British soil, and under the English rule of law… setting foot in the Kingdom of Great Britain emancipated slaves. “[A]ny slave being once in England, the very air made him a free man,” was the holding in the Cartwright’s Case in 1569. This prohibition against slavery on British soil and the absence of a “positive law” authorizing slavery was the reason why the first 19 kidnapped Africans arriving on Virginia’s shores were indentured servants, not slaves. Further, Parliament enacted the Sedition Act of 1661 which made it a crime for any legislature within the Kingdom of Great Britain to purport to enact a law without the King’s permission. Colonial slave statutes and laws did not have the King’s permission and were legal nullities under the English rule of law.
Moreover, the holding of the Twelve Judges of the Court of the King’s Bench in James Somerset v. Charles Stewart established that slavery was not “allowed and authorized by the laws of this Kingdom” and had to authorized by a “positive law,” by which the court meant either statute or its equivalent, immemorial usage or custom. At no time did England’s monarch or later Parliament enact a lawful statute authorizing slavery. Thus, the practice of slavery was extralegal throughout the Kingdom during the Atlantic Slave Trade, spanning from 1525-1807 when Parliament specially abolished the slave trade. Lastly, under colonial charter… the colonial legislative assembly was bicameral with England’s monarch and had no power to enact any statute or valid promulgated law without the permission of England’s monarch or enforce a statute “repugnant” to English law, which all of the 13 British colonies in colonial America was doing by the start of the American Revolution.
In 1689, the English Bill of Rights was signed into law after the overthrow of King James II. The bill outlined specific constitutional and civil rights and ultimately gave Parliament power over the monarchy, creating a constitutional monarchy in the Kingdom of Great Britain. Among other provisions, the bill declared parliamentary sovereignty, elevated the status of Parliament, and granted fundamental civil rights to all Englishmen, which in part caused varied colonial legislative officials to conclude that the three distinct classes of black colonists: (1) free Negro (one that was recognized as being legally free); (2) colonial-born slave (criminally enslaved at birth) and (3) African natives had to be conflated, as the notion of the existence of a distinct class of black colonist called “free Negro”… recognized by English law was too great of a risk for the extralegal practice of colonial slavery. Colonial legislative assemblies enacted colonial slave laws, ordinances, and regulations to strip away fundamental civil rights authorized by Parliament’s bill and failed to secure England’s monarch’s permission.
The era of salutary neglect on the part of the British imperial government came to an end in 1763 when the new Prime Minister George Grenville came into office. Moreover, England’s Parliament, by the Declaratory Act of 1766 abolished colonial slave statutes and laws within the 13 British colonies in North America ten years before the Declaration of Independence in July 1776. The Declaratory Act suspended legislative assemblies and recalibrated their devolved power by colonial charter and rendered colonial slave statutes, laws, resolutions, and related regulations “utterly null and void to all intent and purposes whatsoever.” Parliament reaffirmed parliamentary sovereignty and explicitly declared that it had “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.”
The Declaratory Act of 1766 was coupled with Parliament’s repeal of the Stamp Act… and the news of Parliament’s actions caused rejoicing up and down the seaboard. The colonial celebrations were marked by speeches, festive galas, and even the dedication and then erection of King George III’s statue in New York City. The reception for the Declaratory Act of 1766 was surprising… since the Act had sweeping consequences upon colonial governance and caused colonial slave statutes and related regulations to become void ab initio and returned everything to status quo ante. Yet, pugnacious colonists voiced no concerns to Parliament’s legislative nullification of colonial statutes and laws and declaring its intent to exercise “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.” Under English law… blacks born in colonial America suffering as slaves had their English subjecthood restored, and kidnapped Africans became indentured servants with a terminable period of servitude. The Declaratory Act of 1766 abolished colonial slaver statutes and racialized laws.
Through the Declaratory Act of 1766, Parliament rescinded the lawmaking authority granted to colonial legislative assemblies and declared “all resolutions, votes, orders, and proceedings” that questioned Parliament’s legislative supremacy over the colonies were as a result of this “utterly null and void to all in purposes whatsoever.” The Act stripped the colonists of their devolved power to participate in representative government. It affirmed the legislative status of Parliament that held supreme authority over the subjugated colonial legislative assemblies in America. The Declaratory Act of 1766 remained on England’s law books until 1964, and for colonial governance, it was in alignment with English common law and colonial charters.
The Declaratory Act of 1766 did not cause the colonists in America to protest its enactment. Most saw the Act as a mere restatement of the known and accepted constitutional state of colonial affairs. Moreover, colonial leadership saw a direct parallel to the Dependency of Ireland on Great Britain Act of 1719, also called the Irish Declaratory Act of 1720, which also stated Parliament had complete “authority to make laws and statutes of sufficient validity to bind the Kingdom and people of Ireland.” Further, in 1766 lawyer John Randolph of the colony of Virginia, whose father was Sir John Randolph… the only Virginian to be knighted stated that the Declaratory Act merely made explicit the constitutional state of colonial affairs established in 1689.
The Declaratory Act of 1766 rendered all colonial statutes and laws null and void and rescinded and removed all colonial lawmaking power and authority from colonial legislative assemblies within North America. The state of affairs of all 13 colonies was returned to status quo ante (pre-colonial legislature). By legislatively avoiding colonial statutes and laws, English law controlled as observed by jurist Blackstone in the classic treatise… “if an uninhabited or infidel territory was colonized by Britain, then English law automatically applied in this territory from the moment of colonization.”
Six years later, in 1772… the Twelve Judges of England’s Court of the King’s Bench affirmed parliamentary sovereignty and struck down colonial slave statutes, ruling slavery can only exist by “positive law” and slavery was not “allowed and approved by the laws of this Kingdom” based upon colonial statutes in the James Somerset v. Charles Stewart case. Afterward, in July 1776, in the Declaration of Independence, the 13 British colonies condemned King George III “For taking our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments.” However, in May 1783, after the U. S. entered a peace treaty with England and renewed hostile actions against black Englishmen and liberated Africans… British General Guy Carleton met with General George Washington, who claimed Revolutionary War-era blacks who suffered as slaves were chattel based upon “colonial statutes.” Carleton rejected Washington’s claim, and the two commanders agreed to refer the matter to their Governments for resolution. Subsequently, on January 14, 1784… the U. S. ratified the Definitive Treaty of Peace of 1783 that agreed to “set at liberty” all captive Englishmen. Without establishing their title to captive black Englishmen… the U.S. government enslaved 500,000 Revolutionary War-era blacks based upon presumptive legality of “colonial statutes” adopting Washington’s position and did not grant any due process authorized by law. The claim that Revolutionary War-era blacks were slaves based upon “colonial statutes” was America’s First Big Lie.
The fact that 500,000 Englishmen of African ancestry were forced to be the bedrock of America’s slave pool in violation of an international treaty denied due process. The U. S. failed to prove title to these Englishmen by law was profane and wrong. History supports, colonial statutes that authorized the enslavement of people born in colonial America were legislatively avoided by the Declaratory Act of 1766. Slavery within the Kingdom was prohibited and could only be authorized by “positive law.” There was no “positive law” that authorized slavery, and within the 13 British colonies, slavery existed in violation of colonial charter due to colonial tyranny and corruption of colonial government officials. Doubtlessly, England’s Parliament had the power and authority to enact a law that nullified colonial slave statutes.
Moreover, the colonial legislative assemblies did not have plenary power to enact a slave statute. As none of such statutes, laws, resolutions and related regulations had the permission of England’s monarchy… they were nugatory and not lawfully promulgated statutes, laws, resolutions, and related regulations under the colonial charter. The Fourth of July will be 11 score and seven years since a nation’s people asserted their right to choose their government through the Declaration of Independence. The legislature of the United States committed this nation of erstwhile Englishmen to Anglo-Saxon jurisprudence, adopting its core principle… no one is above or below the rule of law. “We hold these truths to be self-evident, all men are created equal,” and each of the 13 states followed suit, adopting English law. People born in colonial America were Englishmen by birth, and legal rights conferred unto kidnapped Africans brought to colonial America was clearly announced by Lord Chief Justice John Holt of England’s Court of the King’s Bench in 1702 case, Smith v. Browne & Cooper… “as soon as a negro comes to England, he is free; one may be a villain in England, but not a slave.” Bound by colonial charter to adhere to English law, this core principle was functioning in 1619. This was why the 19 chained Africans disembarking the White Lion unto Virginia’s soil were indentured servants… not slaves, under the English rule of law.
Blacks born in colonial America were Englishmen, and native Africans could be nothing less than indentured servants under English law. White colonists did not legally own colonial blacks. They were crime victims under English law. British imperial policies were deliberate attacks upon colonial slavery and were contemplated to have adverse consequences for colonial slavery’s continuation. Not surprisingly, significant slaveowners representatives and colonials immediately resisted varied imperial initiatives. The legal consequence of legislatively avoiding colonial statutes destroyed the underpinning of colonial slavery. Thus, when the 13 colonies issued their Declaration of Independence in 1776… the issue of whether “colonial statutes” created ownership title had been judicially resolved by the Somerset decision. In 1776… blacks born in colonial America were free-born Englishmen, and kidnapped Africans were indentured servants under English law. Doubtlessly, colonial slave statutes and laws were legal nullities, having been legislatively abolished by the Parliament, and half of the 28 listed grievances are complaints about Parliament’s Declaratory Act of 1766.
The first nine grievances in the Declaration of Independence were:
(1) “He [King George III] has refused his Assent to Laws, the most wholesome and necessary for the public good …”
(2) “He [King George III] 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 [King George III] 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 [King George III] 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 [King George III] has dissolved Representative Houses repeatedly, for opposing with many firmness his invasions on the rights of the people.”
(6) “He [King George III] 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 mean time exposed to all the dangers of invasion from without, and convulsions within.”
(7) “He [King George III] 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 [King George III] has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary powers.”
(9) “He [King George III] has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
Doubtlessly, it did not matter, as it was within the prerogative of King George III to withhold his assent to laws, forbid his governors from passing laws, dissolve Representative Houses, select judges, and everything else associated with Parliament’s Declaratory Act of 1766. Moreover, a collateral attack upon Parliament is highlighted in the thirteenth, twentieth, twenty-first, twenty-three, and twenty-eighth grievances in the Declaration of Independence. These grievances were:
(13) “He [King George III] 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.”
(20) “For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.”
(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.”
(28) “He [King George III] has excited domestic insurrections amongst us and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.”
By the mid-eighteenth century, the English Crown had limited legal authority to govern in the colonies without Parliament’s acquiescence; therefore, the common grievance lodged by the 13 colonies was directed at England’s Parliament by way of the Declaratory Act of 1766. The Act legislatively nullified all colonial statutes and related regulations which were not lawfully promulgated, as well as… suspended legislative assemblies and, by so doing, returned colonial affairs to status quo ante. Nonetheless, the 13 colonies averred that King George III had altered colonial “Forms of our Governments.” These grievances, even if legitimate, did not retroactively repeal or otherwise rescind Parliament’s legislative power to annul “colonial statutes.” Firstly, Parliament possessed the plenary power to nullify colonial statutes, and the Declaratory Act had the force of law. Secondly, these sophisticated, enlightened, and learned Americans allowed ten years to pass to surmount an objection to the Declaratory Act. Thirdly, the 13 colonial legislative assemblies were penalized for flagrantly bypassing the King and enacting laws in violation of the colonial charter. Fourthly, concerning altering colonial “Forms of our Government,”… a wrong-doer could not benefit from his actions. Thus, the 13 colonies had no right to complain about losing something they were never lawfully entitled to possess and they did not complain.
The colonial slave statutes and related regulations were objective violations of colonial charters. The colonial legislative structure was bicameral, and any valid colonial statute, law, order, and regulations required England’s King’s permission to be deemed in accord with English law. The colonial legislative assemblies enacted and enforced statutes and laws which were “repugnant” to established English statutes and laws, and/or they failed to secure the permission of England’s King. None of the colonial slave statutes, laws, orders, and related regulations complied with both requirements. Thus, Parliament had a legitimate reason to exercise its legislative supremacy powers and authority over the colonial legislative assemblies in colonial America 1766. Moreover, Parliament possessed plenary power to avoid any colonial statute and did not need to have a legitimate reason to enact the Declaratory Act of 1766… based upon parliamentary sovereignty and the subordinate status of colonial legislative assemblies. This fact alone causes one to conclude that a daunting legislative hurdle was erected before the colonists in 1766 that could not be surmounted, absent Parliament’s repeal of the Declaratory Act, which did not occur.
Legal Case of R. v. Stapylton
The 1771 case of R. v. Stapylton (K.B.1771) was the last slavery case before the James Somerset v. Charles Stewart habeas case. Stapylton involved the attempted forcible deportation of an African slave named Thomas Lewis. At the 1771 trial before Lord Chief Justice Mansfield, Stapylton’s defense rested on the basis that as a slave was property, his assaultive acts against Lewis were not criminal offenses. In Stapylton… Mansfield allowed extensive testimony by Lewis regarding his life history as it related to Stapylton’s alleged title. Stapylton, the alleged owner of Lewis, attempted to deport him forcibly.
During the trial, Mansfield endeavored to coax Stapylton to settle with Lewis by stating that “being black will not prove the property” and outwardly doubted the legal sufficiency of his defense. And in the course of summing up, the Lord Chief Justice stated, “whether they [slave owners] have this kind of property or not in England has never been solemnly determined.” It appears quite likely that by a “solemn determination,” Mansfield had in mind taking a special verdict and hearing arguments before the Twelve Judges, a procedure used at that time for determining essential points of law. It is an en banc tribunal where all twelve justices of England’s three high courts, King’s Bench, Common Pleas, and Exchequer, presides. No such solemn determination had ever occurred regarding slavery in England. Mansfield appeared to have been willing to create a process that could lead to such determination.
Lord Mansfield tested Stapylton’s title based on his view of what English law required, sub silentio determining the slave’s status under English law. Still, in the end, Mansfield directed the jury that they should presume Lewis was a free man unless Stapylton proved otherwise. Mansfield instructed the jury that if they found that Stapylton had a property interest in Lewis, they should bring in a special verdict; if not, “you will find the Defendant Guilty.” The all-white jury convicted Stapylton. Mansfield credited most, if not all, of Lewis’s testimony, not just his testimony on the “chain of ownership” issue, and very clearly communicated his belief in Lewis’s credibility to the jury. And to the jury, Mansfield stated that “I think you have done very right. I should have found the same verdict… he was not the property” [of Stapylton]. Mansfield’s holding in Stapylton became a controlling precedent.
Somerset v. Stewart
On the morning of November 28, 1771, Mansfield denied a renewed motion for judgment by the plaintiff Lewis to assess sanctions against Stapylton. Yet, later that day, Mansfield issued a writ of habeas corpus to John Knowles, captain of the Ann & Mary, on which James Somerset, a slave, born in the colony of Virginia was “confined in irons.” The slave master Charles Stewart directed Somerset to be sold to a sugar plantation for hard labor. Somerset had escaped… but he was recaptured by the end of November and in Knowles’s custody heading for Jamaica. Somerset’s three godparents from his baptism as a Christian in England, John Marlow, Thomas Walkin, and Elizabeth Cade, made the petition on behalf of Somerset.
Captain Knowles of the slave ship produced Somerset before Lord Mansfield of the King’s Bench, and the return to the writ stated the following material points. There were “Negro slaves” in Africa. Slave trade with Africa was necessary to supply slaves to the colonies. By colonial law, slaves were “saleable and sold” in that trade as goods and chattels, and when purchased were “slaves” and saleable “property.” The writ claimed that as Somerset, “a negro” was bought in Virginia and sold to Charles Stewart, he was not entitled to liberty.
During five days of hearing… Somerset’s counsels made virtually every conceivable argument again the legality of slavery in England. Somerset’s counsel attacked the lawfulness of colonial slavery and the slave trade, presenting a range of further arguments that challenged both institutions’ legality. They argued that slavery was contrary to natural law and there was no right of permanent enslavement. They argued that slavery was inconsistent with Christianity and inconsistent with inherent limits on the right to contract.
In response, counsel for Stewart argued English law authorized slavery in England because villeinage, its equivalent, was still legally permissible. They falsely argued English statutes authorized slavery not just in the colonies… but in England. Alternatively, they argued, slaves who came to England should be treated as servants while their masters were temporarily in England, but their return to the colonies should nevertheless be compellable. Lastly, they argued that a decision emancipating slaves who came to England would endanger colonial slavery.
At the close of argument, Mansfield stated that if the parties chose to proceed to verdict in this case, “judgement should be given according to the strict letter of the law… without… power to attend to… compassion… or the danger of precedent… fiat justitia ruat coelum…” He then announced that “though his brothers on the Bench should be unanimous, [the case] required… [a] consultation… among the twelve judges…” London’s May 26, 1772 newspaper The Gazetteer reported that Justice Ashhurst’s notes, one of the twelve judges, that Mansfield rejected “the idea of a contract of service” because the owner insisted on the power to use force to send Somerset abroad for sale; that complete liberty for English slaves would cost owners 700,000 pounds, and he’d listed as unacceptable consequences… the power of killing or enslaving their posterity.
The West Indian slaveholding interests controlled and financed the defense, and they wanted a definitive legal ruling to resolve the uncertainty regarding their colonial property interests. And on June 22, 1772, Lord Mansfield delivered the Somerset decision which granted liberty to Somerset, holding “[T]he state of slavery is of such a nature, that it is incapable of now being introduced by Courts of Justice upon mere reasoning or inferences from any principles, natural or political; it must take its rise from positive law,” acknowledging parliamentary sovereignty over colonial America. Then the tribunal, perhaps relying upon the Declaratory Act of 1766 that legislatively avoided all colonial slave statutes and related regulations in colonial America, made the judicial determination slavery was not “allowed and approved by the laws of this Kingdom.” This judicial determination by the Twelve Judges in the Somerset case confirmed that Parliament had never allowed and approved slavery within Great Britain. The legal and binding precedent of the Somerset’s positive law holding and the fact that the Patriots formally adopted English law after the Declaration of Independence made all “colonial statutes” legal nullities, as slavery became a creature of positive law.
The Somerset decision created a positive law framework for slavery while protecting the colonial status quo. The decision devalued slave property and did as much damage to the legitimacy of the slaveowners’ position as possible, short of an outright ruling against colonial slave practices. And while Lord Mansfield had promised “to let justice be done although the heavens fall” for one side or the other, the decision entirely ignored both Somerset’s counsel’s contentions and their authority that he did not need to emancipate all slaves similarly situated in the Kingdom causing many scholars to conclude that the Somerset decision was a mixed-bag… a compromise designed to defuse the politically dangerous slavery issue. However, the argument that colonial slave statutes were legislatively rendered null and void by Parliament’s Declaratory Act of 1766 was never argued by Somerset’s counsel. Nonetheless, as Somerset’s counsel broadly questioned the legality of colonial slave statutes during the trial… it was an inquiry properly before Mansfield’s tribunal, and if the Twelve Judges took judicial notice of the Declaratory Act, colonial slave statutes and laws within the American colonies were “utterly null and void to all intent and purposes whatsoever.” It is a strong inference from the political circumstances. From the structure of the decision itself, Mansfield accepted that his judgment would be misinterpreted on emancipation and slave status as the necessary price of political peace in the Kingdom. Having accepted that price, Mansfield was not about to publicly articulate his reasoning or resolve the uncertainty on these points once controversy began. This positive law holding held sweeping implications for imperial politics and colonial slave practices, which churned ahead unaffected.
Mansfield’s tribunal adopted the position advocated by Somerset’s counsel. It necessarily rejected the opposing position advocated by Stewart’s counsel that English statutes passed in support of the slave trade, or those governing slavery in the colonies, authorized slavery in the Kingdom. Lastly, the Somerset tribunal rejected Stewart counsel’s other argument that villeinage could provide a legal basis for English or colonial chattel slavery. Nonetheless, this was a nail in the coffin of colonial slavery, and colonial slaveowners understood it as such, mainly accounting for the concerted and immediate attacks on the judgment after it was announced.
Doubtlessly, the positive law holding made the King’s Bench’s decision plain, and it had significant implications for colonial America. Firstly, if positive law was required to support English slavery, and there was, as the tribunal concluded, no positive law, then chattel slavery was unlawful in the Kingdom. Thus, slavery could never be lawful in colonial America. This apparent equivalence between a requirement of “positive law” to authorize slavery and a common-law prohibition on slavery, the latter was the threshold position advocated by Somerset’s counsel. Secondly, the positive law holding observes that slavery in every country had always originated from positive law. The tribunal meant either statute or its equivalent, immemorial usage or custom. To this end, the holding applied to both England and its colonies, a sweeping application that was unnecessary to the Somerset decision if the verdict applied only to slavery in England. Thirdly, England’s Parliament legislatively avoided colonial slave statutes and laws by way of the Declaratory Act of 1766, transforming slavery into a criminal practice
In the aftermath of the Somerset decision… the Continental Congress was created. The Somerset decision in 1772 caused slaveholding colonists to lose confidence and faith in continuing their scheme of hereditary slavery with British government officials. Losing confidence and trust caused their relationship to deteriorate, and relatively soon, the same slaveholding colonists changed sides and were found spearheading a push for independence. And it gave the 13 colonies a common grievance against the British: the Somerset decision, creating an impetus for rebellion.
The Somerset decision being coupled with Parliament’s Declaratory Act of 1766, which abolished colonial slave statutes and related regulations, caused a conundrum for northern colonials. Northern colonists knew to a legal certainty that all colonial statutes and related regulations authorizing slavery were null and void. This caused a form of dissonance as they had willfully embedded slavers into their rebellion, and without doubt, such people were criminals under the rule of law. For example, William Franklin, son of Benjamin Franklin and royal governor of the Province of New Jersey, remained loyal to the Crown throughout the resulting War. The essence of much of the angst was that northern patriots found themselves compromising their political and moral values that all humans were created equally free. The government, therefore, needed the consent of the governed. Many found slavery and the act of supporting slavery by throwing in with slaveholding colonials an anathema and plain wrong.
Dunmore's Emancipation of November 1775
Colonial slavery was a crime since it violated the Royal Assent by Commission Act of 1541 that required the King’s permission unto all statutes and laws within the Kingdom the Sedition Act of 1661 that made it a treasonous offense for a legislature within the Kingdom to purport to enact a law without the King’s permission. Colonial slave statutes and racialized laws operated within the Thirteen British colonies without the King’s permission and by operation of English law, colonial slave statutes and racialized laws were not lawfully promulgated and were legal nullities. Due to colonial tyranny and corruption of colonial government slavery within colonial America became endemic and finally the imperial British government stepped in with the Declaratory Act of 1766, which stripped lawful power from colonial elites, abolished all colonial statutes and created incompatible mindsets on opposite sides of the Atlantic.
Then six years later, the British highest court, the Court of the King’s Bench in June 1772 declared by way of the Somerset Decision that slavery within the Kingdom was unconstitutional and not “allowed and approved by the laws of this Kingdom.” Further, the British Highest court ruled slavery could only be legal through a “positive law,” a power that only resided with the British Parliament. The Somerset decision was the final “nail in the coffin” for colonial slavery and the enslavers within America’s colonies knew this to be the case.
Slavery was the catalyst for organizing America’s thirteen colonies, not a rising democratic spirit. The slaveholding founding fathers knew that the privileged class resistance to imperial British governance that delivered them riches was a problematic rallying cry to mobilize the masses near the point of rebellion. This caused them to connect up with northern colonies and to frame their quarrel with Britain as being based upon natural rights of all colonial subjects and common welfare, giving life to the notion that government derived, or ought to derive, their authority from the consent of the governed. The Founding generation then adopted the political philosophies of liberalism and republicanism, claiming all men were created equal.
And for months, people in the New England colonies started gathering arms and powder and trained to fight the British, if necessary, at a moment’s notice. So, when the British Army marched out of Boston on April 19, 1775, messengers on horseback, including Paul Revere, fanned out across New England to raise the alarm. Summoned by the feverish pealing of church bells, militiamen from countless hamlets hurried toward Concord. And within a week, 16,000 men from the four New England colonies formed a siege army outside British-occupied Boston.
This tension between Britain and the New England colonies caused an order to be given to all colonial governors to secure all gunpowder to deprive potential rebels of this crucial military supply. Virginia’s governor Lord Dunmore complied on April 20, 1775, ordering Lieutenant Henry Colins to remove the gunpowder from Williamsburg’s public magazine. He removed fifteen half-barrels and transported it to a British warship.
Subsequently, on April 22, 1775… an angry mob of colonists assembled at the Governor’s Palace. The assembled colonists were protesting Dunmore’s order removing the gunpowder. The colonists thought Dunmore acted irresponsibly and exposed them to an attack by hostile Native Americans or a possible slave rebellion. However, when Lord Dunmore spoke to the colonists, he was unapologetic and repeatedly threatened to free and arm slaves to defend the Royal government’s cause. Dunmore believed that the notion of former slaves being armed and running throughout Virginia would make the concession of a few gunpowder barrels much less upsetting to the colonists. Dunmore was wrong.
On May 3, 1775, the Hanover militia led by Patrick Henry arrived outside of Williamsburg. This caused Lord Dunmore to abandon the Governor’s Palace for his hunting lodge in Porto Bello in nearby York County. The militia then laid siege to the hunting lodge, and Lord Dunmore was wounded in the leg, forcing him to flee and take refuge aboard the man-of-war Fowey at Yorktown.
Then on November 7, 1775… Lord Dunmore made good on his threat to free and arm slaves to defend the Royal government’s cause in the colony of Virginia when he issued a proclamation. The proclamation adjudged colonial patriots as traitors to the Crown and declared “all indented servants, Negroes, or others… free that are able and willing to bear arms.” The proclamation was well-publicized, and slaves throughout all 13 of Great Britain’s North American colonies separated themselves from their masters to join England’s military under Lord Dunmore’s command.
Lord Dunmore’s proclamation was an iteration of England’s Southern Strategy, envisioned by the King’s ministers to quell the rebellion by crippling the colonial economy, causing social chaos in the southern colonies, weakening and splintering the Continental Congress.
Ironically, Lord Dunmore’s proclamation created an egalitarian society… eight months before the Declaration of Independence the following July. However, Dunmore’s proclamation was not an act of benevolence, nor was it a social experiment; instead, it was economic warfare to ruin the founding generation’s leadership financially… whose wealth was based upon slavery and used to finance and underwrite rebellion in colonial America.
Alexander Purdie, the editor of the Virginia Gazette, warned colonial blacks, “Be not then… tempted by the proclamation to ruin your selves”. This preeminent colonial newspaper claimed Lord Dunmore’s proclamation was a ploy, but it did not work, as colonial blacks from all colonies were leaving their masters in pursuit of freedom. And although their risks in running away had never been greater, captive blacks in search of freedom joined the British Army. The patriots’ response to Lord Dunmore’s proclamation was that they instituted restrictions upon slave meetings and activated militias to patrol the roads and waterways throughout the southern colonies.
Lord Dunmore’s proclamation was successful, as he was able to form a black regiment with former slaves called Dunmore’s Ethiopian Regiment by late November 1775. Their regimental uniforms had sashes inscribed with the words “Liberty to Slaves.” By December 1775… Dunmore’s Ethiopian Regiment saw battle in Virginia at Kemp’s Landing and Great Bridge. Over 12,000 former slaves enlisted in the regiment, which marked a significant turn in English and colonial race relations. These black regiments fought in the North in the Battle of Monmouth in 1778 in occupied New York until War’s end. Black loyalists also commonly served in the Royal Navy as musicians. Their contribution to America’s Revolutionary War prompted the Continental Army to reverse its November 1775 declaration that blacks were ineligible to serve in the Continental Army.
When Dunmore’s Ethiopian Regiment was disbanded, the Black Company of Pioneers, also known as the Black Pioneers, was established in May 1776. They retained Lord Dunmore’s Ethiopian regimental sashes and the slogan “Liberty to Slaves.” While it was not a fighting unit, the Black Pioneers built both huts and accommodations and dug fortifications under consistent heavy fire and in the most dangerous conditions. The Black Pioneers served under England’s Commander-in-Chief General Henry Clinton in a support capacity in North Carolina, New York, Rhode Island, and Pennsylvania. Moreover, the Jersey Shore Volunteers, the King’s American Dragons, the Jamaica Rangers, the Mosquito Shore Volunteers, and the Black Brigade were all combat regiments.
In June 1776, the Continental Congress took over the New England army, creating a national force, the Continental Army, which was then refusing to allow black people to serve in its ranks. However, Lord Dunmore’s proclamation, which led to the creation of Dunmore’s Ethiopian Regiment caused General George Washington to reconsider his policy of racial segregation… as he stated in a letter to Colonel Henry Lee III, success in the rebellion would come to whatever side could arm “negroes” the fastest.
Patriot James Madison felt that Dunmore’s proclamation was the kind of “tampering with the slaves” that he had most feared. “To say the truth,” he confided in a friend, “that is the only part in which this colony is vulnerable… we shall fall like Achilles by the hand of one that knows that secret”. Acting on his belief, Washington then reversed himself in 1777, allowing recruiters to reenlist “free negroes” who had already served in the army, as he worried that these blacks might cross over to the British side. The Continental Army’s enlistment of “free negroes” and then slaves in the patriot forces was successful, as they served honorably during the War.
Declaration of Independence
The former Minneapolis police officer Derek Chauvin’s trial for killing George Floyd has galvanized the Right, who exuberantly blame George Floyd for causing his own death. The Right’s willingness and advocacy to put George Floyd below the rule of law is ferocious and was expected. The Right appears to be gaslighting, but history does support that blacks are placed below the rule of law… as this country was not consecrated upon ideals of freedom and equality under the rule of law. History supports America’s colonial history when it comes to equal justice under the rule of law; we see a practice of systematic lawlessness, racial discrimination, and tyranny. For a good reason, the Declaration of Independence fell into relative obscurity until it was rediscovered eighty-seven years later, during the U. S. Civil War by President Abraham Lincoln’s Gettysburg Address. Lincoln’s speech reintroduced the Declaration and openly questioned whether “a nation conceived in liberty and dedicated to the proposition that all men are created equal could long endure.” But is it gaslighting… if it is true?
The first reported case is that of an African named John Punch in 1640, who was given a life sentence of slavery for the crime of trying to escape indentured servitude. He and two white Europeans escaped together, and all were caught; however, the sentences of his two white European accomplices were only four years. Thus, Punch is “Negro Zero” when it comes to draconian, disparate treatment of blacks by the rule of lawgivers in North America. However, Punch’s life sentence was not authorized under English law. The Punch case was not reversed, nor was it vetoed by Virginia’s colonial governor as it should have been since life-long slavery for this type of offense was not authorized by English law.
Moreover, a life-long term as an indentured servant was slavery. This case is deemed the first colonial, judicial sanctioning of life-long slavery in America. Edgar A. Toppins in A Biographical History of Blacks Since 1528 writes: “Thus, the black man John Punch became a slave, unlike two white indentured servants who merely had to serve a longer-term. This was not the first known case in Virginia involving slavery. It was significant because it was documented.” The Punch case is credited with giving rise to targeted repression of people of African ancestry within colonial America’s colonial courts.
Doubtlessly, colonial legislative assemblies did not have plenary power to enact slave statutes, laws, resolutions, votes, orders, and related regulations. They were “repugnant” to the English rule of law and did not have England’s monarch’s permission. Further, under the Sedition Act of 1661… the purported enactment of a slave statute was treasonous and under no circumstance could be deemed lawful. Further, the “repugnant” colonial slave statutes and related race regulations violated fundamental rights guaranteed under England’s Magna Carta. Colonial slave statutes and related race regulations enacted by colonial legislative assemblies were colonial tyranny, racial terrorism, and corrupt colonial governmental practices. The criminal practice of colonial slavery was furthered by corruption of colonial government, colonial tyranny and salutary neglect… where colonial legal institutions enforced wholly defective slave statutes, laws, resolutions, votes, orders, and related regulations.
By late June 1776, nine Provincial Congresses were ready for independence; one by one, the last four fell into line: Pennsylvania, Delaware, Maryland, and New York, and the following month, they unanimously adopted the Declaration of Independence on July 4. The Americans knew slave statutes and laws were null and void by the Declaratory Act of 1766. Black Englishmen were their countrymen… not their slaves pre-Declaration of Independence, as colonial slavery had been abolished by operation of English law. In 1772, the Twelve Judges of the King’s Bench in the Somerset case ruled slavery was not “approved and authorized by the laws of in the Kingdom” and established a Positive Law Framework for slavery. The ruling had existential consequences for imperial politics and slavery throughout the Kingdom. Slave mastering in colonial America became criminal in the absence of a “positive law” authorizing the practice, but the Patriots did not care. Top of minds of all… were the words of fellow patriot Benjamin Franklin of Pennsylvania, who perfectly framed the moment… by reminding everyone that “They must indeed, all hang together, or, most assuredly, we shall all hang separately.” Franklin’s musing placed the matter in perspective, as the rebellion had become mortally personal for all.
Then to shield themselves from recrimination and being classified as criminals, the founding generation claimed that the pronouncement in the Declaration of Independence that “all men are created equal” “excluded” blacks because of their slave status. Decidedly, this was pure misdirection since colonial slave statutes violated the Sedition Act of 1661, each colonial charter and the English Bill of Rights of 1689. It is ahistorical as blacks born in colonial America were not Englishmen by birth… with the same legal rights as the Patriots. Colonial-born blacks had the same status and right to life, liberty, and happiness as Thomas Jefferson or George Washington under the English rule of law.
Moreover, colonial slave statutes and laws were never approved and authorized by “positive law” and were abolished by Parliament’s Declaratory Act of 1766. Even a careful review of controlling precedent, treatises, and colonial charters provides no legal support for the conclusion that the Declaration of Independence could and did exclude colonial blacks from anything. The Declaration of Independence did not create or inure any erstwhile Englishman or Patriot additional rights, status, or privileges. The Declaration of Independence was a mere listing of grievances that condemned King George III’s governance of the 13 colonies in America.
English common law, the English Bill of Rights of 1689, the Declaratory Act of 1766 legislatively abolished colonial slave statutes and laws, and the Somerset decision judicially struck down colonial statutes and laws, and yet, the founding generation was extremely prickly when British abolitionists labeled them as being hypocrites for adopting English law and then refusing to recognize liberty and due process rights of black colonists under English law. Indeed, this was a fair assessment of Americans since colonial slavery was first and foremost a crime under the Sedition Act of 1661, never were authorized by “positive law” and colonial slave statutes, and laws were abolished and rendered null and void by the Declaratory Act of 1766… more than ten years before the Declaration of Independence. Yet, slaveholding colonials continued the criminal practice unabated, and other Patriots for “thirty pieces of silver” rallied for these men and this misanthrope institution. Slaveholding Patriot Thomas Jefferson, a co-author of the declaration, understood how slavery, as constituted, was incompatible with the English rule of law and the Declaration of Independence. He brought a bill to Congress to have the U. S. abandon English law in favor of Roman law, which was favorable to a slave-based Republic. However, Jefferson’s bill to formally adopt Roman law was rejected, and afterward, Congress formally adopted English law in July 1776, and the legislative assemblies in each of the 13 states followed suit.
Patriots supporting the American slaveholders like Benjamin Franklin tried to downplay the significance of the positive law holding in the Somerset case. They wanted to forget the existential implications of Parliament’s legislative nullification of colonial statutes and related regulations authorizing slavery in 1766 and the 13 colonies government’s core condemnations of King George III in the Declaration of Independence: “For taking our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments” and “For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in All cases whatsoever.” These stated grievances and the legal certainty that colonial America’s slave statutes, laws, and related regulations were lawfully abolished by King George III… make America’s response to this criticism, as delivered by Benjamin Franklin, totally disingenuous and feckless. He stated, “Pharisaical Britain! To pride thyself in setting free a single slave that happens to land on thy coasts, while thy merchants in all thy ports are encouraged by thy laws to continue a commerce whereby so many hundreds of thousands are dragged into a slavery that can scarce be said to end their lives since it is entailed on their posterity!” Franklin’s observations were deflective… as he attempted to shift scrutiny to imperialists within England when the question is whether America’s slavery practices were violating the rule of law.
Nonetheless, an immutable truth is revealed… all men capable of persecuting tyranny over black babies are equally capable of hypocrisy and misdirection. Objectively, the Somerset decision established that positive law was required to support slavery, and the Declaratory Act of 1766 made one thing clear… “colonial statutes and laws were “utterly null and void to all intent and purposes whatsoever.” This Act stripped the 13 colonial legislative assemblies of all devolved lawmaking powers and authority. Thus, colonial slavery had no legal trappings or facade of being an authorized practice or institution.
Lastly, England was “a nation of laws, not men,” and the Somerset decision in 1772 created a positive law framework for slavery… that slavery in every country has always originated from positive law. As Parliament suspended all colonial legislatures after legislatively avoiding colonial statutes, no pretext existed for the Americans to claim, at least all prove ownership of any Revolutionary War-era blacks. Thus, six years after enacting the Declaratory Act of 1766… England could and should have taken at least a modicum of pride in setting free a single slave named Somerset that happened to land on its coasts.
Washington and Carleton
British General Henry Clinton exercised plenary power when he liberated black colonists in June 1779. The Phillipsburg Proclamation was authorized by English law… a patent of mercy and liberation. Objectively, black colonists and kidnapped Africans were entitled to habeas relief as all were illegally detained or enslaved within the North American colonies, now the United States. From the outset, de jure slavery was a crime since it violated the Sedition Act of 1661 and all colonial charters. Further, the British did not lose sight of the fact that the Declaratory Act of 1766 legislatively abolished colonial slave statutes and related regulations and that the 13 former British colonies were sanctioning the enslavement of British subjects in derogation of English law. Nonetheless, the founding generation had universally condemned King George III “For taking our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments” and “For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in All cases whatsoever.” The British imperial government was optimistic that unconditional emancipation of the slave population would turn the War around… if black colonists suffering as slaves came to the British line.
The Phillipsburg Proclamation was a successful initiative… but was not a dispositive maneuver. As 1781 dawned, General George Washington warned all that would listen that his army was “exhausted” and the citizenry “discontented.” Further, John Adams publicly stated that France, faced with mounting debts and having failed to win a single battle in the American theater against the British, would not remain in the War beyond 1781. “We are in the Moment of Crisis,” he wrote. Both Washington and Adams assumed that unless the U. S. and France scored a decisive victory in 1781… the outcome of the War would be determined at a conference of Europe’s great powers. This possibility was concerning to America since this upstart nation would lose much of its bargaining power in such a forum. Moreover, the Americans feared that a conference of Europe’s great powers would objectively consider, analyze, and render an unfavorable judgment with respect to colonial America’s title claim to Revolutionary War-era blacks who were being held in an unlawful state of slavery, in derogation of English law.
Afterward, France withdrew her support of the U. S. war effort, and by early 1782, America’s treasury was empty. So, as the U. S. teetered on financial and social collapse, America sued for peace, choosing Benjamin Franklin, John Jay, John Adams, Thomas Jefferson, and Henry Laurens as U. S. Peace Commissioners to negotiate terms. Quickly, they found negotiating terms were complex and challenging due to the Phillipsburg Proclamation that liberated all Revolutionary War-era blacks in June 1779. England viewed America’s Declaration of Independence as a mere declaration of grievances, and thus, the ending date of British rule proved to be the sine qua non for peace. Nonetheless, on November 30, 1782, the two nations entered a truce and ultimately ratified the Definitive Treaty of Peace of 1783. Among other provisions, both sides agreed to cease “hostilities” and “set at liberty” all prisoners after the treaty’s ratification was finalized. But when news of a truce was known in the U. S., the Americans began kidnapping Revolutionary War-era blacks off public streets, in their homes, claiming British subjects of African ancestry were somehow America’s chattel property and excluded from the terms of the treaty. Moreover, America’s kidnappings of Revolutionary War-era blacks became widespread and organized. It violated the cessation of hostility truce between England and the U. S.
The kidnappings of black Englishmen caused British General Guy Carleton to lodge a formal attestation of treaty violation against the U. S. in May of 1783 to a U. S. delegation led by America’s future President, General George Washington. Carleton told the U. S. delegation… England saw former slaves as British subjects… and thereby entitled to liberty and protection under the treaty. Carleton’s interpretation of the treaty was “underpinned by facts. First, colonial slavery was never a lawfully authorized practice under English law. Second, colonial slave statutes and laws were legislatively avoided by the Declaratory Act of 1766. Third, “American Laws” were judicially struck down and did not qualify as being “positive law” by the Twelve Judges of the King’s Bench in the Somerset case. Fourth, over 90 percent of slaves were born in colonial America and were English subjects by birth with a liberty right under English law, no different than other colonials.
Moreover, less than 10 percent of the slave population were native Africans. However, Carleton’s predecessor General Henry Clinton liberated all slaves exercising plenary authority under the Phillipsburg Proclamation in 1779. Washington and the delegation rejected Carleton’s interpretation of the treaty. But when Carleton inquired as for specifics, he was baffled when Washington claimed all former slaves were owned by Americans based upon “colonial statutes.” Then he proclaimed England would be violating the treaty if he were to remove black Englishmen from America.
Undeterred, Carleton told the U. S. delegation that England would be removing Revolutionary War-era blacks from the U. S. if they wanted to leave… but he feared the treaty might unravel, so he proposed that they each record the names of blacks leaving America in separate registries called the Book of Negroes, and agreed to compensate America for the loss of value of all blacks removed if such person was found to be America’s property. Presently, the British version of this registry is held in the National Archives in Kew, London. In contrast, the U. S. registry is held in the National Archives and Records Administration in Washington D.C. Moreover, the commanders agreed to refer this matter to their respective governments.
Objectively, America understood the strength of England’s legal claims over Revolutionary War-era blacks under the English rule of law. First, slavery was prohibited on British soil. Second, colonial slave statutes and laws violated Parliament’s Sedition Act of 1661 that made it treasonous for a legislature in the Kingdom to purport to enact any law without the King’s permission. Third, the English Bill of Rights in 1689 assured liberty for all English subjects and the right of due process under the law. Fourth, colonial charters bound colonial legislative assemblies to adherence of English law. Fifth, colonial legislatures were bicameral, and colonial slave statutes were enacted without first securing the required permission of England’s monarch. Sixth, Parliament legislatively abolished all colonial slave statutes, laws, and related regulations by way of the Declaratory Act of 1766… ten years before the Declaration of Independence. Seventh, the Twelve Judges of the Court of the King’s Bench in the Somerset case overturned repugnant colonial slave statutes and laws by declaring slavery was not allowed and approved in this Kingdom and established a Positive Law Framework for authorizing slavery. Eighth, Clinton’s Phillipsburg Proclamation liberated all slaves within the colonies in June 1779. The British imperial government continued its supreme authority and power over the colonies until the Definitive Treaty of Peace of 1783 was fully ratified in 1784. Eighth, the legal presumption that a black colonist was a free man by English law and the burden of proving title was announced by the holding in the Stapylton case.
British General Carleton’s plan to relocate all Revolutionary War-era blacks to a British port caused the U. S. to erect dragnets surrounding British ships in New York harbor to capture blacks seeking freedom. The U. S. was certain that it could not prove Revolutionary War-era blacks were excluded under the treaty as the British had insurmountable evidence, so it did not even attempt to prove title to blacks. Nonetheless, and in a testament to America’s resolve… only 3,000 blacks escaped from America out of an estimated 500,000 Revolutionary War-era blacks eligible for transport. The remaining captives were made slaves, becoming the bedrock of America’s slave pool and its emerging slave-based economy.
The Definitive Treaty of Peace of 1783 was America’s first international peace treaty, predating America’s Constitution by five years, which declared in Article VI of the U. S. Constitution, a treaty, as a matter of domestic law, is the “supreme Law of the Land.” Further, only the U. S. Constitution is superior to a treaty, and the latter has the equivalent legal dignity of a statute. Article II of the Constitution further states that the United States President must “take care that the laws be faithfully executed.” Treaties and other forms of international law, or as previously called Law of Nations, therefore, occupy the legal pyramid’s apex and all domestic authorities of any particular country, whether denominated as rules of its national Constitution, ordinary legislation, or in any other manner… are subsidiary. A country cannot, under this system, interpose domestic law as a justification for its failure to meet treaty requirements. If it could, there would not be much point in concluding such agreements. If a valid treaty imposes an obligation, international law will demand adherence to it. Thus, juxtaposing these texts, it is “black letter law” that a treaty must be enforced unless it runs afoul of a provision of the Constitution or if a directly contrary stipulation supersedes it… in a subsequently enacted statute. Thus, under U. S. law… the ratified Definitive Treaty of Peace is the supreme law of the land.
The U. S. Congress and each state legislature formally adopted English law over Jefferson’s objections after the Declaration of Independence in the summer of 1776. These legislative acts by the U. S. government and each of the 13 states bound Americans to British jurisprudence and do control the question of the legal sufficiency of “colonial statutes” to vest title of ownership of Revolutionary War-era blacks to Americans and allow them to subject these people to slavery within America after signing the Definitive Treaty of Peace of 1783, ratified by the U. S. Congress on January 14, 1784. The U. S. government did not have a legal right to enslave 500,000 black Englishmen, as they had a legal right to liberty under the rule of law and should have been “set at liberty.”
Moreover, liberty was a personal right under English law. On June 30, 1779, the British imperial government saw fit to liberate black people illegally suffering as slaves within the North American colonies. Each of the 500,000 Revolutionary War-era blacks was entitled to a due process hearing. Thus, the presumptive legal status of the 500,000 enslaved blacks were English prisoners of this civil War. The ratification of the Definitive Treaty of Peace conceded continued British rule. As well, the U. S. was on actual notice that England claimed liberty on behalf of 500,000 Revolutionary War-era black colonists, former slaves who were emancipated by the Phillipsburg Proclamation and were prisoners of American nationals. In turn, the U. S. made these 500,000 Revolutionary War-era black colonists the bedrock of its slave-based economy and did violate the international treaty. Objectively, it must be addressed forthrightly if a restorative justice program for the horrors of U. S. slavery is to be proffered by U. S. policymakers.
Firstly, the historical claim that Revolutionary War-era blacks were owned by erstwhile Englishmen who became Americans is ahistorical and was without any legal support. History supports, slavery was prohibited on British soil and such was the reason why the first 19 to 20 kidnapped Africans arriving in 1619 Virginia were indentured servants, not slaves. As well, colonial Legislatures were bicameral: the colonial assembly and the King and could not enact a law that was repugnant to English law. Moreover, pursuant to the Royal Assent by Commission Act of 1541 that required the King’s permission unto all statutes and laws within the Kingdom and the Sedition Act of 1661 that criminalized a legislature’s mere imputation of having “a legislative power without the King,” the resulting colonial slave laws were legal nullities, by operation of English law. The United States was obligated to presume all Revolutionary war-era blacks were free British citizens unless their American citizens could prove otherwise under the holding in the Rex v. Stapylton case, a 1771 case, presided over by Lord Chief Justice Mansfield.
During colonial times, Parliament’s Declaratory Act of 1766 abolished colonial statutes and related regulations, especially declaring “colonial statutes” to be “utterly null and void to all intent and purposes whatsoever.” The Declaratory Act of 1766 was not repealed, and by operation of English law… colonial slavery was abolished, and everyone was returned to status quo ante. Under English law… it was as if colonial slavery had never occurred. Blacks born in colonial America who suffered as slaves had their English subjecthood and liberty rights restored, and kidnapped Africans became indentured servants with a terminable period of servitude. The Declaratory Act of 1766 abolished colonial slavery during colonial times.
Secondly, the laboring class of European colonists showed little interest in “white identity” before the institution of the system of race-based privileges at the end of the seventeenth century, as observed by Theodore W. Allen’s seminal two-volume study The Invention of the White Race. He explained that his research of Virginia’s colonial records did not reveal an official use of the word “white” as a token of social status before 1691. This was not a matter of semantics; he found that the “white race” as we know it was not, and could not, have been functioning in early Virginia. But over time… Virginia’s policy of white-skinned privilege and the narrative that those unearned privileges entitled them to discriminate against all people of African ancestry and Native Americans grew to influence social, political, legal, and labor systems throughout the Atlantic World Societies. This white race policy was invented as a colonial ruling class, social control formation, and gave rise to white supremacy ideals.
The Ida B. Wells Center on American Exceptionalism and Restorative Justice (Wells Center) claims the true heritage of America is bi-racial. Black Englishmen were criminally victimized, and all 500,000 Revolutionary War-era blacks should have been “set at liberty” per the ratified Definitive Treaty of Peace. Decidedly, under English law, colonial slave statutes and racialized laws violated the Sedition Act of 1661 and as such laws did not have the King’s permission… the colonial assemblymen who passed such laws were guilty of the crime of treason. Further, colonial slave statutes were legal nullities without the King’s permission and colonial slavery was an extralegal practice that was legislatively avoided by an act of Parliament in 1766 and colonial statutes remained null and void throughout the balance of colonial times… people of African ancestry were British subjects or indentured servants, no different from America’s patriots. The treatment of people of African ancestry in America is a tale of systemic governmental corruption during colonial times extended by the founding fathers’ misanthropic actions after the Revolutionary War ended by treaty. Colonial slavery’s origins… and Parliament’s legislative avoidance of colonial statutes, laws, resolutions, orders, and related slavery regulations in 1766… demonstratively rebuffs the notion that white colonists legally owned Revolutionary War-era blacks. Doubly, it transforms America’s slave-owning patriots into villains. Thus, the historiography of colonial slavery and circumstances surrounding the enslavement of 500,000 Revolutionary War-era blacks who became the bedrock of America’s slavery pool must be reexamined.