Causing a Sea-Change
Slavery in the United States has a criminal origin, and it is the “fruit of the poisonous tree.” The “fruit of the poisonous tree” is a metaphorical expression whose origin is Anglo-American common law. The metaphor stands for the legal proposition that if the source of evidence (the tree) is corrupted or tainted, anything deriving from it (the fruit) will bear the same flaw. This applies to U. S. slavery (the fruit) since colonial slavery (the tree) was a criminal enterprise based upon colonial government corruption, graft, and colonial tyranny. Doubtlessly, U. S. slavery bears the same flaws as colonial slavery, and it could not have been lawfully inherited from British colonial rule based upon “colonial statutes” since the British imperial government abolished all “colonial statutes” ten years before the Declaration of Independence.
Yet U. S. slavery being a legal institution during British colonial rule is America’s public policy and serves as basic U. S. history, even though colonial slave statutes and racialized laws supporting slavery during colonial rule were not lawfully promulgated and were abolished by Parliament’s Declaratory Act of 1766 “for all purposes whatsoever.” Further, colonial slave statutes were repudiated by the British highest court, the Court of the King’s Bench in the James Somerset v. Charles Stewart case which declared slavery was not “allowed and approved by the laws of this Kingdom,” and that slavery in the Kingdom could only be legal by a “positive law,” which meant a statute, or a law enacted by England’s Parliament in 1772. This was four years before Parliament’s Declaration of Independence. Nonetheless, America’s Second Congress claimed black colonials were excluded from the Declaration because they were slaves.
America’s most reverberating tremor was felt when General George Washington declared this provocative truth, professing ownership of 500,000 black British citizens on behalf of white Americans in May 1783 in a meeting with British General Guy Carleton. Washington advocated for the surrender, retention, and continued enslavement of black colonials here in America based upon “colonial statutes.” Carleton was not persuaded. Washington’s claim and professed basis for enslaving and exploiting black Englishmen based upon “colonial statutes” shaped America’s public policy and U. S. constitutionalism. There are enumerable legal reasons why Washington’s claim to Carleton and the resulting enslavement and exploitation of 500,000 black Englishmen was legally unsupportable, and without factual merit.
As an initial matter and destructive to America’s public policy that slavery under the British rule of law was a legal institution and Washington’s ownership claim is the fact that colonial slave statutes and laws were never lawfully promulgated. Under the Royal Assent by Commission Act of 1541 and each colonial charter, formal approval of the sovereign was required to enact legislation within the Kingdom. Colonial assemblies failed to secure the King’s formal approval upon its colonial slave statutes and laws. Further, colonial assemblies purporting to enact slave statutes and hereditary slave laws, without securing the King’s formal approval committed a treasonous offense under the Sedition Act of 1661. Thus, colonial slave statutes and laws were legal nullities and were never lawful, least of all, were not “positive laws.”
Among other accolades and attributes, George Washington is revered for confessing to chopping down a cherry tree and never telling lies. Yet, early in the American Revolution… Washington consistently promised U. S. citizenship to black colonials who took up arms and fought alongside him against the British and upon war’s end, he did not keep his promise of U. S. citizenship to his black soldiers and as well, he refused to recognize their British citizenship. History supports… Washington is the American who made the false claim to British General Guy Carleton in May 1783… that black colonials were owned by white colonials, now called Americans based upon “colonial statutes.. This was a falsehood since colonial slavery was a criminal act… colonial statutes were never lawfully promulgated and the British imperial government abolished all repugnant colonial statutes and racialized laws by way of the Declaratory Act of 1766 “for all purposes whatsoever” nine years before the American Revolution started.
Generously, in the book Fallen Founder: The Life of Aaron Burr, Nancy Isenberg observed that “these were our founders: imperfect men in a less than perfect nation, grasping at opportunities. That they did good for their country is understood and worth our celebration; that they were also jealous, resentful, self-protective, and, covetous politicians should be no less a part of their collective biography. What separates history from myth is that history takes in the whole picture, whereas myth averts our eyes from the truth when it turns men into heroes and gods.” Doubtlessly, as deep racial and ethnic inequities that exist today are a direct result of our founders’ vision, practices, and ideals that put black people below the rule of law, it forces us to reimagine these “imperfect men” to examine structural racism origins: “colonial statutes.” Liberty was improvidently denied to Revolutionary War-era blacks at the dawn of this Republic based upon colonial statutes.
Further, a series of compromises occurred during the Constitutional Convention of 1787 due to the presumption that 500,000 Revolutionary War-era blacks were slaves and not British citizens under British rule that led to Article One, section 2 of the United States Constitution: the Three-Fifths Compromise. Many believed that this meant early America’s blacks as individuals were considered three-fifths of a person and in fact remained in force until the post-Civil War 13th Amendment freed all enslaved people in the United States, the 14th Amendment gave them full citizenship, and the 15th Amendment granted back men the right to vote. Thus, America’s historiography must change, and a proper and an untraversed portal to achieve restorative justice is revealed.
Colonial slave statutes operated extralegally during colonial times, and Parliament’s Declaratory Act of 1766 abolished colonial statutes. The Act changed everything, as colonial slave statutes became null and “utterly void.” It was in 1766 when Parliament exercised its supreme power and authority over colonial legislative assemblies. The Declaratory Act had the force of English law within the colonies, and it was enacted 21 years before the constitutional convention in Philadelphia, Pennsylvania. Furthermore, Parliament did not repeal the Declaratory Act, and no subsequent colonial slave statutes were lawfully promulgated and enacted. However, after the Definitive Treaty of Peace in 1783 that ended the American Revolutionary War was ratified, 500,000 Revolutionary War-era blacks were enslaved based upon the presumptive validity of “colonial statutes.” These presumptive free Englishmen were not granted a due process hearing. No American ever met their burden by proving ownership title required by law and controlled by the holding in Rex v. Stampylton (K.B. 1771). Yet, Revolutionary War-era blacks were denied due process and then exploited as slaves… becoming the bedrock of America’s slave pool.
Myths have been substituted for historical facts. Everyone is taught that colonial slave statutes made Revolutionary War-era blacks the property of Americans. This was ahistorical. Further hidden in myth is the fact that slavery in the colonies was an extralegal practice, existing due to corruption of colonial government officials and colonial slave statutes, laws, resolutions, orders, and related regulations were legislatively abolished by the British imperial government in 1766. This action by England was figured prominently in the 13 colonies’ Declaration of Independence ten years later, in July 1776.
Further, six years after colonial statutes were abolished and three years before the American Revolution started… colonial slave statutes were struck down when England’s Court of the King’s Bench in the James Somerset v. Charles Stewart case ruled slavery was not “allowed and approved by the laws of this Kingdom” and “the 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.” Only Parliament had the power of enacting a positive law and the ruling rendered colonial slave statutes null and void during colonial times.
In the face of colonial statute having never been a legal nullities under the Royal Assent by Commission Act of 1541 and the Sedition Act of 1661 and overwhelming evidence to the contrary, Washington claimed in May 1783, colonial blacks were human property and owned by erstwhile Englishmen, now Americans. This claim became America’s policy. The founders crafted, refined, and bolstered Washington’s reputation to further the “colonial statute” lie, and it became an enduring myth. Just two generations ago, President John F. Kennedy observed that “the great enemy of truth is very often not the lie; deliberate, contrived, and dishonest, but the myth; persistent, persuasive, and unrealistic; too often we hold to the cliches of our forebears… we enjoy the comfort of opinion without the discomfort of thought.”
English law prohibited slavery on its soil, and colonial slave statutes were enacted in violation of English rule of law and the colonial charters. Further, the exercise of parliamentary sovereignty over colonial legislatures and its abolishment of colonial statutes and suspense of colonial assemblies in 1766, as well as the official acts of the British imperial government overturning “American Laws” by way of the Somerset decision in 1772, coupled with the attestation of the 13 colonial governments which condemned King George III for abolishing colonial statutes and their legislatures in the Declaration of Independence, did not stop America’s government from claiming ownership of 500,000 black Englishmen and their exploitation based upon “colonial statutes.”
This thoughtful, well-researched, and legally supported exposition that provides a counter to America’s foundational public policies regarding black slavery, deserves due consideration by academics, policy leaders, thought leaders, and others… and yet the conflation of the award-winning 1619 Project with the academic-based critical race theory debate is weaponized to serve as an artifice, conferring people with the “privilege” of discrediting, deflecting, and demonizing worthy race-based thesis and commentary without thought or academic engagement. All freethinkers, open communicators, and people interested in serving this democracy should be concerned since the legacy of colonial slavery, unjust treatment under the rule of law, and racial disparity continues and are America’s most durable exports.
Washington's Colonial Statute Claim
Under the Definitive Treaty of Peace in 1783, 500,000 black British citizens were entitled to be “set at liberty” and yet, America’s dehumanized countless men, women, and children, and it was done cleareyed in pursuit of their ideals of a “more perfect union.” America failed to grant due process to black English citizens, authorized by international law and exploited them in violation of its own rule of law. England’s Magna Carta of 1215 and common law had long declared “one may be a villien in England, but not a slave.” This was the reason why the first 19 Africans arriving unto the colony of Virginia’s shores were indentured servants, not slaves, in 1619.
Slavery was never legal in colonial America. Colonial Legislatures in British North America were bicameral: a colonial assembly and the King by colonial charter. Under Somerset v. Stewart, only a positive law could authorize slavery in the Kingdom of Great Britain. Further, pursuant to the Sedition Act of 1661, any and all colonial assemblyman within the British colonies that purported to enact a statute or a law without the King’s permission was guilty of treason. Under England’s Magna Carta of 1215… no one was above or below English law, and no Englishman could be born a slave.
Notwithstanding, the Sedition Act of 1661 and its colonial charter… Virginia’s legislative assembly, House of Burgesses, purported to enact a slavery statute and did so without England’s King’s permission in 1661. Each of Virginia[‘s assemblyman was guilty of treason under British rule of law. Further, the following year, in 1662 Virginia’s House of Burgesses purported to enact a hereditary slave statute of partus sequitur ventrem that imposed lifetime bondage on colonial-born people based upon the legal status of the mother and did so without England’s King’s permission. Each of Virginia’s assemblyman was guilty of treason. Virginia’s legislative assembly did not have plenary power or authority to authorize a slave statute or to vary any English law.
Doubtlessly, the treasonous actions of Virginia’s legislature were crimes, as they violated Parliament’s Sedition Act of 1661 that forbade legislatures within the Kingdom from enacting laws without the King’s permission. Also, Virginia’s legislature was bicameral: a colonial assembly and the King and as colonial statutes required the permission of England’s monarchy to be a valid statute or law, they were legal nullities. Virginia’s colonial slave statutes were “repugnant” to the English rule of law that prohibited slavery and overreaching legislatures and partus sequitur patrem… a patrilineal descent system.
Virginia’s colonial charter’s repugnancy provision and failure to secure the King’s permission prevented the slave statute in 1661 and the hereditary slave statute of partus sequitur ventrem in 1662 from becoming lawfully promulgated colonial statutes. Nonetheless, due to corrupt colonial government officials in the colony of Virginia, the slave statutes operated extralegally in Virginia. Soon, this slavery scheme was emulated by nearly all other colonial assemblies within British North American colonies. Slavery in colonial America was highly profitable, and it became endemic throughout the British colonies. Colonial statutes were not positive laws and could not authorize the enslavement of black colonists or Africans during colonial times.
Lastly, all colonial slave statutes and racialized laws became “null and void” in 1766 when England’s Parliament passed the Declaratory Act of 1766, which legislatively abolished all colonial statutes, laws, and related regulations nine years before rebellion had even sparked an ember. Moreover, the 1772 seminal decision of the Twelve Judges of England’s Court of the King’s Bench in the James Somerset v. Charles Stewart case established a Positive Law Framework for authorizing slavery within the Kingdom of Great Britain during colonial times… a legislative power that vested exclusively with Parliament. Further, this tribunal determined slavery was not “allowed and approved by the laws of this Kingdom.”
Objectively, the holding in the Somerset case applied in colonial America, as the litigation concerned the legality of “American Laws” and the substantive legislative consequence of the Declaratory Act of 1766 avoided all “American Laws” and did cause the 13 colonies in America to collectively condemn King George III “For taking our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments” in the Declaration of Independence. Black Englishmen were countrymen of the Patriots… not slaves, yet they and then their children became the bedrock of America’s slave-pool.
In the early 1640s, a series of civil wars erupted between Royalists and Parliamentarians. The Parliamentarians won the civil wars, which led to the English monarchy’s replacement with the Commonwealth of England under Oliver and Richard Cromwell. Constitutionally, the actions established the precedent that an English monarch cannot govern without Parliament’s consent. And the principle of parliamentary sovereignty or supremacy was legally established as part of the Glorious Revolution in 1688. The following year, Parliament codified parliamentary sovereignty in the English Bill of Rights of 1689. The parliamentary sovereignty principle holds that this legislative body has absolute sovereignty and is supreme over all other government institutions, including executive and judicial bodies.
The English Bill of Rights of 1689 stripped England’s monarch of royal powers. The Act specially declared “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.” Additionally, “That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late is illegal.” And thereby, this Act of Parliament declared parliamentary sovereignty. Varied English constitutional scholars such as A. V. Dicey opined that Parliament had the right to make or unmake any law whatever. Further, the law of England recognizes no person or body as having a right to override or set aside the legislation of Parliament.
Further, the English Bill of Rights of 1689 incorporated in law the conviction that although some people may inherit privileges, all English citizens have “basic rights.” Fundamental was the right to liberty that could not be capriciously interfered with, abolished, or changed by the government and the right to the due process of English law. These “basic rights” were conferred unto everyone in the Kingdom, as Parliament did not take this opportunity to exclude foreigners. Moreover, England was “a nation of laws, not men,” and “no one was above or below English law.” By way of the English Bill of Rights of 1689, Parliament conferred “basic rights” upon black people living in colonial North America, and colonial slave laws were denying the power and authority of Parliament to do so.
Dicey and other English constitutional scholars concluded that there were three sources for parliamentary sovereignty: (1) sovereignty by an Act of Parliament itself; (2) the complex relationship between all parts of government and their historical development and (3) the English courts that enforced all Acts of Parliament without exception. The Parliament of Great Britain was conferred parliamentary sovereignty over the colonies in North America by all three.
Firstly, Parliament’s English Bill of Rights of 1689 declared Parliament’s supreme power over the colonies: parliamentary sovereignty. Then Parliament’s Declaratory Act of 1766 declared Parliament with “full power to make laws and statutes of sufficient force and validity to bind the colonies and people of America… in all cases whatsoever.” Parliament’s Declaratory Act of 1766 affirmed parliamentary sovereignty, legislatively avoided colonial statutes and laws, and recalibrated colonial legislative assemblies’ devolved power to enact laws in 1766. The Act limited the power of colonial legislative bodies to enact statutes, laws, resolutions, votes, orders, and proceedings with Parliament’s permission, as provided for in colonial charters, and declared “all resolutions, votes, orders, and proceedings” in the colonies that denied or questioned Parliament’s power and authority to make laws binding the colonies “in all cases whatsoever” were “utterly null and void to all in purposes whatsoever.” And in real terms, the Declaratory Act of 1766 recalibrated the imperial relationship with its wayward colonial legislative assemblies in North America by reaffirming parliamentary sovereignty. The abolishment of repugnant colonial statutes, laws, orders, and resolutions that denied or challenged “the power and authority of the parliament of Great Britain, to make laws and statutes” restored colonial legislative systems to status quo ante. Thus, Parliament’s legislation rendered all colonial statutes, laws, and resolutions that challenged Parliament’s power “utterly null and void” in 1766.
Fundamentally, all colonial slave statutes and related regulations denied and questioned the power and authority of Parliament’s English Bill of Rights of 1689 since the Act codified “basic rights” of everyone within the Kingdom. Colonial slavery denied liberty and due process under English law to blacks born in colonial America and Africans. In particular, the fundamental rights… in particular, “due process rights” and “Liberties,” could not be taken away, abolished, or interfered with by the government in the absence of the due process of English law.
Further, foreigners in the realm had the right to due process under the rule of English law. With little debate, the enactment of slave statutes and related regulations by colonial legislative assemblies that facilitated the subsequent passage of hereditary slave statutes and laws denied and questioned: “the power and authority of the parliament of Great Britain, to make laws binding the colonies.” Doubtlessly, by enacting colonial slave laws, colonial legislative assemblies assumed and exercised Parliament’s power and authority.
Furthermore, colonial legislative assemblies enacted colonial slave statutes and passed resolutions in the absence of lawful authority. Colonial legislative bodies, by enacting colonial slave statutes and related regulations “suspended” (overruled) English laws like jus soli, partus sequitur patrem, and the due process of English law, specified in England’s Magna Carta and the English Bill of Rights of 1689 and did not seek or receive Parliament’s consent. The colonial legislative assemblies did not have plenary power and authority to overrule or change English laws.
Lastly, the enactment of the hereditary slave statute and law of partus sequitur ventrem required all colonial legislative assemblies in North America to secure Parliament’s permission before “overturning” the English common law traditions of jus soli: birthright subjecthood and partus sequitur patrem: a patrilineal descent system. Indeed, enslaving people born in colonial North America and subjecting captive Africans to toil as a slave required Parliament’s permission. Each colonial assembly in North America failed to do so. Thus, under the Declaratory Act of 1766 and as a matter of English law, colonial slave statutes and all related regulations authorizing colonial slavery were legislatively avoided in North America’s colonies. After 1766, colonial slavery operated extralegally and afoul of Parliament’s supreme power and legislative authority.
Legal Case of R. v. Stapylton
The 1771 case of Rex 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 avoided 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.
The Declaratory Act Avoided Colonial Slave Statutes
Parliament’s Declaratory Act of 1766 recalibrated the defined legislative role of colonial legislative assemblies within the North American colonies. The Act legislatively abolished colonial statutes and related regulations, and the Act rendered colonial slave statutes and related regulations “utterly null and void to all intent and purposes whatsoever.” The Act’s legal consequence was that all colonial slave statutes and related regulations became void ab initio. All members of colonial legislative assemblies were stripped of the belief that they could enact colonial statutes, laws, votes, resolutions, and related regulations without first securing Parliament’s permission. Furthermore, the legal question of whether colonial slave statues were legally valid after the Declaratory Act of 1766 was conclusively addressed and resolved by the Twelve Judges of the Court of the King’s Bench in the Somerset case in 1772… four years before the Declaration of Independence. England’s High court affirmed parliamentary sovereignty and judicially struck down colonial slave statutes and related regulations by its ruling that slavery was not “allowed and approved by the laws of this Kingdom” and could only be lawful by “positive law”… which only Parliament had the power to enact a positive law during colonial times… not any colonial assembly, as the Declaratory Act of 1766 had made plain.
The ahistorical claim that colonial patriots like Thomas Jefferson… the author of the Declaration of Independence, George Washington… America’s first president, James Madison… Father of the U. S. Constitution, John Marshall… America’s first Chief Justice of the Supreme Court and others legally owned blacks living within any of the North American colonies and merely migrated their lawful ownership of Revolutionary War-era blacks from English rule have become interwoven and is inextricably intertwined within America’s historiography. This was America’s first Big Lie, as the Declaratory Act of 1766 legislatively avoided all colonial slave statutes, laws, resolutions, votes, orders, and proceedings and rendered them “utterly null and void to all intent and purposes whatsoever.” The Act reestablished Parliament’s supreme authority over the legislative assemblies within each North American colony.
The English Bill of Rights of 1689 had codified “liberty” as being a fundamental right and extended the due process protections of English law to all within the realm. No legislation of Parliament ever excluded people of African ancestry from such protections. All colonial statutes and related regulations became legal nullities. Everyone living within the North American colonies was returned to status quo ante. And Parliament saw the Declaratory Act of 1766 as a mere reaffirmation of what it considered longstanding parliamentary rights and furthered their real goal of regaining control over the colonials by eviscerating England’s wrong-headed policy of salutary neglect. Thus, Parliament thought it had made a fair bargain with the North American colonies and saw the Act as a win-win situation. It had repealed an unpopular law, the Stamp Act… colonials rejoiced that a wrong had been righted and advanced no organized resistance to the Declaratory Act of 1766 and afterward could not be heard to complain.
Declaration of Independence
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 freeborn Englishmen, and kidnapped Africans were indentured servants under English law. Doubtlessly, colonial slave statutes and laws were legal nullities, having been legislatively avoided 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 avoided 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 avoid “colonial statutes.” Firstly, Parliament possessed the plenary power to abolish 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 being 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.
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 in 1766 had a legitimate reason to exercise its legislative supremacy powers and authority over the colonial legislative assemblies and avoid “colonial statutes” in colonial America legislatively. 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.
Facts are Stubborn
Massachusetts’ patriot and lawyer John Adams… America’s second president never owned slaves, and he refused to use slave labor. During colonial times, Adams’ wife Abigail Adams was a vocal critic of slavery. Before forging a relationship with slaveholding patriots, Adams had occasionally represented slaves in lawsuits for their freedom. And although Adams held the practice of slavery in abhorrence… once the Continental Congress was constituted and functioning, he became resolved to maintain unity to achieve independence. Seemingly, Adams adopted patriot Benjamin Franklin’s unity perspective… “we must all hang together, or most certainly, we shall hang separately.”
Although slavery was abolished in Massachusetts about 1780… when it was forbidden by implication in the Declaration of Rights that Adams wrote into the Massachusetts Constitution. Yet, he scrupulously restrained from advancing his liberal views upon his slaveholding colleagues and founders of America. However, in the late 1780s, Adams did have occasion to share his thoughts on the slavery question during the U. S. constitutional debates… when he stated, “[F]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” Adams’ warning to the framers of the Constitution seems remarkably prescient, as specific stubborn facts had lingered, casting a shadow and does militate against America’s claim that colonial patriots legally owned blacks based upon colonial statutes, laws, and related regulations before the Declaration of Independence and the status and legal condition of Revolutionary War-era blacks was static after the Definitive Treaty of Peace in 1783 was ratified by Congress in 1784.
The dispositive stubborn fact is America’s claim that “colonial statutes” made black Englishmen the property of America’s founding generation. This claim of ownership of Revolutionary War-era blacks was first made by America’s Supreme Commander General George Washington to England’s General Guy Carleton in May 1783, who claimed blacks who’d suffered the unlawful condition of colonial slavery belonged to America’s slaveholding Patriots based upon “colonial statutes.” This position became America’s policy. However, English common law did not authorize slavery within the American colonies.
Further, the other stubborn facts are; (1) England by way of colonial charter never conferred plenary authority upon colonial legislative assemblies to enact slave laws; (2) Parliament recalibrated colonial legislatures proscribed role and status by passing the Declaratory Act of 1766, declared parliamentary sovereignty and legislatively avoided colonial slave statutes, laws, resolutions and related proceedings in “all cases whatsoever.”; (3) the Somerset Decision affirmed parliamentary sovereignty… then judicially struck down colonial slave statutes, laws and related regulations by ruling slavery was not “allowed and approved by the laws of this Kingdom”; (4) the U. S. Congress formally adopted English law after declaring themselves an independent nation in July 1776; (5) the Phillipsburg Proclamation, an executive writ of mercy and liberty issued June 1779 that liberated and restored the subjecthood of all enslaved blacks enlisted in the King’s Army and (6) the U. S. signed the Definitive Treaty of Peace in 1783 agreeing to release all prisoners and thereby conceded British rule extended until ratification which occurred May 1784… entitling the release of 500,000 Revolutionary War-era blacks who were otherwise free under English law.
Patrick Henry then clamored “Magna Carta” eight years after the Declaratory Act of 1766 was jubilantly received in America, and Thomas Jefferson would write, “By one Act they [Parliament] have suspended powers of American legislature and by another have declared they may legislate for us themselves in all cases whatsoever. These two acts alone form a basis broad enough whereon to erect a despotism of unlimited extent”. However, Henry and Jefferson’s attacks upon the Declaratory Act of 1766 do not alter the fact that it was a law that legislatively avoided colonial slave statutes and related regulations in 1766 or change the judicial ruling in the Somerset v. Stewart case that slavery was not “allowed and approved by the laws of this Kingdom” and could only be lawful by way of “positive law” in 1772.
Jefferson and Washington's Slaves
In The Atlantic in 2014… journalist and writer Ta-Nehisi Coates wrote an essay titled The Case for Reparations. He challenged each and everyone to consider that “To celebrate freedom and democracy while forgetting America’s origins in a slavery economy was patriotism a la carte”… “If Thomas Jefferson’s genius matters, then so do his taking of Sally Hemings’ body. If George Washington crossing the Delaware matters, so must his ruthless pursuit of the runagate Oney Judge”. Jefferson, a United States Envoy and Minister to France, brought fourteen-year-old Sally Hemings to Paris in 1787. He fathered a child with this young black girl… and Washington claimed ownership of Oney Judge… both were legally free Afro-English people who were born in colonial Virginia in 1773… who should have been “set at liberty” under the Definitive Treaty of Peace in 1783… thusly, the behavior of America’s first and third president of the United States must also matter.
Sally Hemings was born in Charles City County, Virginia, in 1773. Hemings was the biological daughter of white Englishman John Wayles, Thomas Jefferson’s father-in-law. History supports, Hemings came to Jefferson’s Monticello home as an infant as part of Martha Jefferson’s inheritance from her father, John Wayles. Concerning Oney Judge, she was born in Mount Vernon, Virginia, in 1773. Judge was the biological daughter of white Englishman Andrew Judge, George Washington’s tailor.
On June 30, 1779… England’s General Henry Clinton freed all enslaved people living within the North American colonies, including Hemings and Judge, then six-year-old girls whose fathers were white Englishmen. Significantly, Virginia’s charter of 1606 provided in relevant part the following:
“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 several 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 said Dominions.”
Hemings and Judge were English citizens by birth under jus soli. Colonial-born black colonists such as Hemings and Judge, whose fathers were white Englishmen, were deemed “children of the King,” protected by a 1350 “statute for those who are born in Parts beyond Sea” as both of their fathers were white Englishmen. This Act protected Heming and Judge’s ancestral English common law birthrights since their fathers were white Englishmen.
This 1350 Act, when combined with Parliament’s Declaratory Act of 1766 that legislatively avoided Virginia’s hereditary slave statutes and related regulations, withdrew colonial legislative lawmaking powers and declared parliamentary sovereignty over colonial slave laws and the Somerset decision in 1772 that affirmed parliamentary sovereignty by ruling “American Laws” were not “positive law” and colonial slave statutes were not “allowed and approved by the laws of this Kingdom” rendered Jefferson and Washington’s putative ownership interest in these Virginia-born English people void ab initio… well before the American Revolutionary War started. And although the Definitive Treaty of Peace in 1783, which was ratified on January 14, 1784, and the U. S. agreed that all “prisoners” like Hemings and Judge were to be “set at liberty,”… but they were not freed.
The mixed-race Hemings and Judge were freeborn Englishmen by English law in 1773… as it was the year after the Somerset decision affirmed parliamentary sovereignty, ruled colonial slave statutes, and related regulations were not “positive law.” Slavery was not “allowed and approved by the laws of this Kingdom.” Both women’s fathers were white Englishmen. English law of jus soli made Hemings and Judge… British subjects by birth in 1773… not slaves, and they were protected under English law. This was also supported by the 1656 colonial case involving a mixed-race woman named Elizabeth Key, who was granted her freedom because her father was a white Englishman.
Doubly, the Declaratory Act of 1766 legislatively avoided all of Virginia’s hereditary slave statutes and related regulations because such “proceedings” specifically challenged “the power and authority of the parliament of Great Britain, to make laws and statutes” by way of Virginia’s colonial charter and the English Bill of Rights of 1689.
How Jefferson and Washington treated Hemings and Judge is even a more compelling indictment against these men since the U. S. Congress adopted English law after the Declaration of Independence in July 1776… so both Jefferson and Washington were continuously bound to English law and are legal imputed to know the law of jus soli and controlling legal precedent.
Doubtlessly, the British had attempted to give illustrative slaveholding patriots like Jefferson and Washington a safe harbor to ignore the legal consequence of the Declaratory Act of 1766, as well as the Somerset decision in 1772. Moreover, Congress attempted to ignore the clear language in the Definitive Treaty of Peace in 1783 concerning releasing “prisoners,” … but as John Adams had warned all…” facts are stubborn” and “cannot alter the state of facts and evidence.” Under English law… the Declaratory Act of 1766 and the Somerset decision that affirmed parliamentary sovereignty were dispositive of the legal question of Hemings and Judge’s British subjecthood and entitlement to liberty upon the ratification of the Definitive Treaty of Peace in 1783 in the year 1784. These Afro-Englishwomen should have been “set at liberty.” The American Revolution did not legitimate the criminal enslavement of these mixed-race women that began due to colonial tyranny and could not change or alter the English rule of law.
Jefferson and Washington were engaged in criminal behavior under English law in the year 1773. Ignorance of the law is no excuse for breaking the law, and they are attributed to have known that their ownership claims of Hemings and Judge were criminal and without legal merit. Such being the case, it is understandable that the U. S. never addressed the question of legal status and condition of Afro-English people like Hemings and Judge or the liberty question posed by the Definitive Treaty of Peace in 1783 before a court of competent jurisdiction.
Further, Jefferson, Washington, and other slaveholding Americans did not have a viable ownership claim since 90 percent of Revolutionary War-era blacks were born in colonial America, just like Hemings and Judge. Jefferson and Washington were enlightened and informed men of the 18th century… learned in law and politics who knew that each was exploiting uneducated and uninformed black people who were legally free.
Yet, admirers of America’s founding generation are still willing to give them all free passes. They quickly point out that Washington, for his part, treated his slaves well… did not break-up families and emancipated them in his will. And Jefferson contemplated the emancipation of his slaves as well… but sadly, Jefferson was too much in debt to do so at his death. However, core to all free passes is the false and dehumanizing notion that the black people these men lorded over were slaves… but in reality… they were freeborn Englishmen who were criminally enslaved in derogation of English and international law. Thus, Jefferson and Washington are not entitled to a free pass since an American president’s behavior does matter and continues to matter.
Colonial tyranny gave rise to the practice of hereditary slavery, an extralegal institution based upon colonial slave statutes and laws. However, the Declaratory Act of 1766 legislatively avoided colonial slave statutes and related regulations in 1766. Then in 1772… the Twelve Judges of the Court of the King’s Bench in the Somerset case judicially affirmed Parliament’s supremacy over colonial lawmaking, and it struck down colonial slave statutes and related regulations by operation of English law before the Declaration of Independence.
Moreover, on June 30, 1779… England’s Commander-in-Chief General Henry Clinton issued the Phillipsburg Proclamation, an iteration of England’s Southern Strategy of November 1775. The proclamation was a lawful exercise of executive power, and it was plenary. Under the British tradition… a royal prerogative of mercy is one of the historic royal prerogatives of the British monarchy or governor-general of the realm. It was not justiciable. Under English law… executive power could be delegated to a minister of His Majesty King George III, such as a British Commander-in-Chief General Henry Clinton.
The Phillipsburg Proclamation provided as follows:
“Whereas the enemy have adopted a practice of enrolling NEGROES among their Troops, I do hereby give notice. That all NEGROES taken in arms, or upon any military Duty, shall be purchased for the public service at a stated Price; the money to be paid to the Captors. But I do most strictly forbid any Person to sell or claim Right over any NEGROE, the property of a Rebel, who may take Refuge with any part of this Army: And I do promise to every NEGROE who shall desert the Rebel Standard, full security to follow within these Lines, any Occupation which he shall think proper. Given under my hand, at Head Quarters, PHILLIPSBURG the 30th day of June 1779”. H. CLINTON
Clinton’s proclamation of June 1779 had the force of law and did confer liberty, subjecthood, and protection unto all colonial blacks who enlisted in the King’s Army. No different than Lincoln’s Emancipation Proclamation during America’s Civil War… one of the main rationales behind this proclamation was to gain a military advantage by stimulating mass desertion of enslaved black colonists.
The Phillipsburg Proclamation extended the scope of Dunmore’s Proclamation, issued in November 1775, eight months before the Declaration of Independence. Virginia’s Governor, Lord Dunmore, granted freedom to slaves willing to serve the Royal forces. This proclamation proclaimed all slaves free, regardless of their willingness to fight for the British Crown. Further, it promised to protect all enlisted slaves from reprisals.
The Phillipsburg Proclamation aligned with the 1495 Act of Henry VII to ensure the English rule of law was faithfully executed or to offer mercy to anyone within His Majesty’s realm whom the government believed should be granted a pardon or relief. There was no legal standing for the U. S. to attack the Phillipsburg Proclamation since it was not subject to direct or collateral attack under English law. Alternatively, if the U. S. believed that Clinton’s exercise of executive, plenary power was justiciable or he did not have executive, plenary power to liberate Revolutionary War-era blacks due to the so-called American Revolution and could not lawfully liberate anyone suffering as a slave within His Majesty’s realm after the Declaration of Independence… then the U. S. should have held a due process hearing for the 500,000 Revolutionary War-era blacks as authorized by English law and therein raise and argue this exception in the Definitive Treaty of Peace in 1783 if it existed.
The Phillipsburg Proclamation lawfulness can be dispositive of the question of liberty for the Revolutionary War-era blacks after the ratification of the Definitive Treaty of Peace in 1783. This was especially true since the Declaratory Act of 1766 specially declared Parliament had full power and authority over America’s colonies. This Act affirmed parliamentary sovereignty to enact laws upon the colonies in “all cases whatsoever.” And then, in 1772, the Court of the King’s Bench in the Somerset case affirmed parliamentary sovereignty by declaring slavery was not “allowed and approved by the laws of this Kingdom” and could only be made lawful by “positive law”; a law enacted by Parliament. The Phillipsburg Proclamation reaffirmed the British Crown’s authoritative rights to delegate authoritative powers to carry out the rule of law in the colonies.
History supports anticipating the ratification of the Definitive Treaty of Peace in 1783… General George Washington and England’s General Guy Carleton met in May 1783 to discuss the logistics of the British leaving America… and the two commanders discussed the legal status and condition of former enlisted slaves under the treaty. Carleton claimed Revolutionary War-era blacks were free Englishmen protected by the treaty and as prisoners of Americans were protected by the treaty. Washington disagreed… and he tersely claimed: “colonial statutes” somehow conferred Americans with ownership of Revolutionary War-era blacks.
Washington’s claim of lawful ownership of Revolutionary War-era blacks based upon “colonial statute” was insupportable since blacks born in colonial America had subjecthood at birth under English law. According to each colonial charter… the English common law tradition of jus soli controlled… all people born in colonial North America were Englishmen by birth. And Parliament had made plain in passing the Declaratory Act of 1766 that it was this imperial legislature that had the power to enact laws on the colonies in “all cases whatsoever” and the Somerset decision affirmed parliamentary sovereignty when it ruled “American Laws” were not “positive law” and slavery was not “allowed and approved by the laws of this Kingdom.”
Under the jus soli tradition, America’s founding generation identified themselves as Englishmen and then declared themselves a sovereign nation in 1776 because of governmental tyranny. And Washington’s ownership claim could not overcome four stubborn facts: (1) colonial legislative assemblies never had plenary power to enact a hereditary slave statute or law that authorized colonial slavery; (2) Parliament passed the Declaratory Act of 1766 voiding all repugnant colonial laws and asserted parliamentary sovereignty over colonial laws for itself; (3) then the Somerset decision of 1772 affirmed parliamentary sovereignty and declared slavery was not “allowed and approved by the laws of this Kingdom” and (4) the Phillipsburg Proclamation of June 30, 1779, conferred subjecthood and liberty unto Revolutionary War-era blacks in accordance to English law during the British rule of colonial America.
Carleton was unsuccessful in his attempt to disabuse Washington of his baseless ownership claim. But soon… Carleton realized an inflection point existed… and it could forestall or prevent the ratification of the treaty. But Carleton was unclear as to whether Washington understood the intricacies of the Definitive Treaty of Peace in 1783 or England’s sine qua non concerning tying British rule with the treaty’s ratification. Shrewdly, Carleton suggested to Washington that the prickly issue of liberty for Revolutionary War-era blacks and all related questions surrounding their legal status and condition should be referred to their respective governments, and he agreed.
Carleton stated that if removing blacks proved to violate the Definitive Treaty of Peace in 1783, then compensation would have to be paid by the British government. Washington agreed. However, the opposite was true: if keeping blacks proved to violate the Definitive Treaty of Peace in 1783, then compensation would have to be paid by the U. S. government. To provide for either possibility, both Carleton and Washington generated separate registries called The Book of Negroes, listing their names, ages, occupations, along with the names of their former masters, so that “the owners might eventually be paid for the slaves who were not entitled to their freedom by British Proclamation and promises.”
Then Carleton, in having announced the British policy and position on the legal status and condition of formerly enslaved blacks who were freed based upon “British Proclamation and promises” and entitled to certificates of freedom… but knowing that the treaty was yet to be ratified by U. S. Congress, he adjourned the meeting, deciding that nothing could be settled. Washington understood that Carleton was claiming freedom on behalf of all Revolutionary War-era blacks living in North America based upon the Phillipsburg Proclamation of June 30, 1779, proclaimed by British General Henry Clinton under English law.
Carleton ordered everyone under his command to “remain on duty until every man, woman, and child who wanted to leave the United States is safely moved to British soil.” However, through detention, coercion, and deception, the U. S. and its citizenry thwarted blacks’ mass exodus to the British ships. So, by November 28, 1783… when the British left America, only 3,000 black people were able to traverse America’s dragnet and secured passage on British ships to leave America… heading to Nova Scotia, the Caribbean, and England.
There are two versions of the Book of Negroes in existence; the British version held in The National Archives in Kew, London, and the U. S. version held by the National Archives and Records Administration in Washington, D. C. The U. S. made 500,000 British citizens the bedrock of its slave-based economy without granting these people due process, a right guaranteed by the Habeas Corpus Act of 1679. The mere fact that the U. S. denied Afro-Englishmen due process was a crime since it formally adopted English law. These stubborn facts do not support Washington’s ownership claim nor America’s denial of due process to 500,000 presumptive Afro-Englishmen.
The fate of the other 500,000 black people was unsettled. Still, the U. S. Congress was fully aware that Parliament’s Declaratory Act of 1766 had legislatively voided colonial slave statutes and resolutions votes, orders, and proceedings. Further, the Somerset decision judicially struck down colonial slave statutes and laws in 1772. Moreover, the English Bill of Rights of 1689 had long ago codified “basic rights”… in particular, liberty could not be taken away, abolished, or changed by the government in the absence of the due process of English law.
Lastly, even if colonial statutes had remained lawful and were not legislatively repealed by the Parliament of Great Britain in 1766… the stubborn fact is that the Phillipsburg Proclamation of June 1779 exercised plenary power and could (did) liberate all Revolutionary War-era slaves during British rule. The ratification of the Definitive Treaty of 1783 ended British colonial rule in May 1784. The circumstances surrounding England’s sine qua non regarding the end of British rule also changed the history when the U. S. became independent of British rule. Facts and reason reject July 4, 1776… since the U. S. Congress ratified the treaty on January 14, 1784. Then, in turn, the British signed the Definitive Treaty of Peace in 1783 on April 9, 1784, and a fully executed copy of the treaty was delivered to the U. S. on May 3, 1784, in Paris, France. Phillipsburg Proclamation resolves all potential questions regarding the legal status of the 500,000 people the U. S. enslaved in derogation of the Definitive Treaty of Peace in 1783. Thus, the Phillipsburg Proclamation had English law force, as British General Clinton exercised plenary power. All enslaved people within the erstwhile North American colonies, the self-declared United States on June 30, 1779, became “prisoners” of this civil war and entitled to liberty upon ratification. Without dispute… the U. S. government was required to substantiate their ownership claim under Stapylton.
The untruthful, deceptive, and unchallenged claim that Revolutionary War-era blacks were owned by erstwhile Englishmen, now Americans based upon “colonial statutes,” created the superstructure for structural racism within the U. S. and white supremacy ideals and dogma. The racist notion that blacks could be placed below the rule of law was imported into America as a cultural norm, and it was then exported… with worldwide implications. Doubtlessly, this is the linchpin of structural racism and white supremacy ideology within the U. S.
Black people during colonial times were crime victims, not slaves, as all colonial slave statutes and related regulations were legislatively avoided in 1766 by Parliament. However, colonial slavery from its beginning violated English law… and due to the British government’s collaboration in furtherance of this crime, slaveholding colonists were not legally sanctioned for practicing slavery during colonial times. And while this criminal practice lost its shiny veneer of legitimacy once the Somerset decision affirmed parliamentary sovereignty after the Declaratory Act of 1766… four years before the Declaration of Independence, it is particularly significant that none of the slaveholding patriots were ever held to account for their behavior that violated English law during colonial times and all too many will continue to claim that there is nothing to see here… let’s move along.
Ida B. Wells Center on American Exceptionalism and Restorative Justice is committed to engaging, researching, and addressing these historical misapprehensions through Scholarship, Engagement, and Action as myths and falsehoods surround colonial slavery are inextricably interwoven into America’s historiography, culture, and its belief systems.