What is particularly perplexing is the willingness of historians to declare colonial slavery faced “no immediate threat” in light of dispositive and compelling evidence to the contrary—such as, the British pre-Declaration of Independence slavery initiative—Southern Strategy and the criminal origin of colonial slavery that flourished due to colonial government corruption, colonial tyranny, and England’s policy of salutary neglect. Then in the early 1760s, the British imperial government abandoned its policy of salutary neglect and abolished colonial slave statutes and racialized laws by the Declaratory Act of 1766 “for all purposes whatsoever.”
Six years later, the Somerset decision ruled slavery was illegal and not “allowed and approved by the laws of this Kingdom,” which was self-executing and controlling legal precedent throughout the Kingdom of Great Britain that included colonial America. And even if one did not want to concede to the suggestion that the historical evidence is dispositive and insuperable or that the Somerset decision abolished colonial slavery—nonetheless, it is implausible, impeachable, and reckless for historians to claim there was “no immediate threat” to colonial slavery before the Declaration of Independence of 1776.
Simply—the southern Americans latched upon the British imperial government’s directive to its colonial governors in the summer of 1772—to not apply the Somerset decision which was only issued to avoid civil unrest, instability, and possible rebellion within the American colonies. But subsequent developments within colonial America and actions of the British imperial government caused that directive to be nullified before the Declaration of Independence in 1776.
Moreover, the directive of the British imperial government in 1772 did not purport to legalize colonial slavery, nor could such a directive change the legal consequence that slavery had become illegal within colonial America by Parliament’s Declaratory Act of 1766— ten years before the Declaration of Independence and in fact supports the conclusion that a real threat to colonial slavery did exist as the political directive did not change the law.
Fear of Southern Civil Unrest Thwarts Freedom
History supports, on January 6, 1772, within six months of the Somerset decision becoming known in colonial America—an enslaved person in the colony of Massachusetts named Felix submitted the first of five petitions during that year claiming—a range of rights be recognized to Massachusetts Governor Thomas Hutchinson and to the General Court of Massachusetts, its colonial assembly. Based upon historical records, Felix’s petition spoke of the “unhappy State and Condition” in which enslaved colonials were forced to live. Though signed only by this person named Felix—the document petitioned for the freedom and rights of all black colonials suffering as slaves in the Massachusetts colony, and Massachusetts assembly took the petition under consideration.
Significantly, the General Court of Massachusetts came to approve Felix’s or one or all of these freedom petitions before the American Revolution. However, Massachusetts Governor Hutchinson and then his successor Sir Thomas Gage followed the British imperial government’s directive of non-enforcement of the Somerset decision within colonial America, fearing civil unrest by colonial Southerners—and each vetoed the General Court of Massachusetts legislative actions favoring emancipation of enslaved Massachusetts colonials in 1773 and 1774. Abolitionists later published the petition as a pamphlet and letters and other abolitionist documents.
The vetoes by the British imperial government caused Massachusetts patriot Samuel Adams and other Northerners to clamor that the vetoes of the Massachusetts Assembly’s legislative measures to liberate enslaved colonials—by successive colonial governors evidenced Britain’s blatant disregard and contempt for the rule of law announced in the Somerset decision, and it proved corruption and was a rallying cry proving government tyranny.
American Slaveholders Angered by Anti-Slavery Empire
Further, the scholar Matthew Mason observed in North American Calm, West Indian Storm: The Constitutional Politics and Legacy of the Somerset Decision “that American slaveholders saw Somerset as a fundamental denial of their property rights and political control over their slaves within an increasingly hostile antislavery empire.”
And while patriots in the southern colonies were pleased by the British imperial government’s olive branch concerning not enforcing the Somerset decision in colonial America and the successive vetoes by Massachusetts governors of slave emancipation legislation by the Massachusetts assembly… they collectively believed Britain’s handling of the Somerset case foretold of a nefarious plot to deprive them of their wealth—wealth created from their criminal enslavement of colonial-born British citizens and they knew that such could be easily accomplished by merely arresting and criminally prosecuting them. Thus, slaveholding southerners were not settled on the question of colonial slavery’s future before America’s Revolution.
Moreover, in the immediate aftermath of Massachusetts colonials protesting the British imperial government vetoing its emancipation bill in 1773 and 1774—throughout southern colonial America and in a colony such as Virginia—rumors of a British plan to enforce the Somerset decision and draft former slaves into the military began circulating to such an extent that even a group of enslaved black colonials presented themselves to Virginia’s Governor Lord Dunmore to volunteer their services.
Lord Dunmore declined the offer made by the enslaved colonials in 1774, but their presentment to Lord Dunmore evidenced the overall feelings of southern colonial Americans that they had concerns about the end of colonial slavery, and their concerns were only heightened by the literature and newspaper articles coming out of London that an Emancipation Bill was set to reach the floor of the British Parliament any day. But despite the fears of southern colonial Americans concerning an Emancipation Bill—an Emancipation Bill was an unnecessary formality for liberating black English citizens living in the American colonies.
The reason an Emancipation Bill was unnecessary to free America’s black colonials was because slavery after the Somerset decision was illegal, as Parliament’s Declaratory Act of 1766 had already voided colonial slave statutes and racialized laws “for all purposes whatsoever,” six years earlier.
Furthermore, the Somerset decision involved a black colonial, and the question of the legality of “American Laws,” and these statutes and laws were declared ineffectual to legitimize slavery by the Twelve Judges in 1772, and as there were no subsequent colonial slave statutes or “positive laws” authorizing the practice—black colonials suffering as slaves in the American colonies were legally free English citizens—no different than the 15,000 black people suffering as slaves in England and Wales who were freed in 1772 immediately after the Somerset ruling.
Under the Royal Assent by Commission Act of 1541 and each colonial charter—formal approval of the British sovereign was required to lawfully pass legislation within the Kingdom, and yet during colonial times, the practice of slavery became endemic—even without the King’s permission. And the actions of the colonial legislators from the colony of Virginia who enacted the initial hereditary slave statutes were violations of the Sedition Act of 1661, which made it a serious crime to enact a law without the King’s formal approval—but they and the practice were aided and assisted by the corruption of colonial government, racial repression, and a policy of salutary neglect, and hereditary slavery thrived.
Then one might ask—if it is true that the first nineteen Africans who arrived here in the United States in the colony of Virginia in 1619 were indentured servants—not slaves because of English laws—true that slavery was prohibited on British soil by the English rule of law—true that slavery in colonial America was not authorized by the common law or by a properly promulgated statute and true that colonial slave statutes and racialized laws were voided by Parliament’s Declaratory Act of 1766—ten years before the Declaration of Independence in 1776, then why didn’t the Somerset decision on the 22 of June 1772 free enslaved black colonials as colonial slave statutes in America’s colonies were illegal?
Reasonably, it could be argued, that in the aftermath of the Somerset decision that made slavery illegal in the Kingdom on June 22, 1772—the British imperial government felt that the liberation of 500,000 black colonials would cause civil unrest and possible armed rebellion within colonial America. They could have determined that the risk for civil unrest was too high—so the British imperial government directed its colonial governors to not apply the Somerset decision—to further the stabilization of its American colonies.
The British imperial government could have also feared that if the Somerset decision was enforced, as the colonial government was in criminal league with colonial enslavers, it too could create civil unrest and armed rebellion. And it was because of this corrupt partnership and other factors that no one was held to account for these criminal actions against black colonials and why colonial governors were directed to not apply or enforce the Somerset decision for the present time.
The corrupt relationship by and between colonial enslavers and the British colonial government and the proactive actions of the British imperial government is what accounts for the two hundred and fifty years of controversy, as it allowed southern American colonials to regroup and to claim with impunity that the Somerset decision did not affect colonial America and the ruling only meant “a person, regardless of being a slave, could not be forcibly removed from England against his will and carried abroad.” Yet, black colonials were restored to the status quo ante by operation of the English rule of law.
The Somerset decision was the “last nail in the coffin” of colonial slavery. The conclusion that it made slavery within colonial America illegal is inescapable when the Somerset decision is bridged back to colonial slavery’s problematic and lawless origin during the mid-1600s through the creation of the unitary state and parliamentary sovereignty by way of the English Bill of Rights of 1689 and the Declaratory Act of 1766 that voided colonial slave statutes and racialized laws “for all purposes whatsoever.”
History supports… colonial slavery within colonial America’s colonies became illegal in 1766 under the Declaratory Act of 1766 and the Somerset decision merely affirmed parliamentary sovereignty over the American colonies; yet the illegal practice continued. But as the Rev. Dr. Martin Luther King, Jr. had reminded America during the late 1960s—“the arc of the moral universe is long, but it bends toward justice.”
English Bill of Rights Abolished Racialized Laws
Legal change did happen with the English Bill of Rights of 1689—followed by Parliament’s Declaratory Act of 1766 that abolished all repugnant colonial statutes and racialized laws within colonial America “for all purposes whatsoever” six years before the Somerset decision. And colonial slave statutes and racialized laws were not carved out as being exempted or exceptions to the Declaratory Act of 1766. However, legal change did not translate into actual change for black colonials.
The Somerset decision in 1772 is best understood as a subtle judicial strike down of “American Laws,” a solemn determination of the constitutional question of the extent of the power of a lawless sole chamber of a bicameral legislature to enact a “positive law” and an affirmation of parliamentary supremacy within the Kingdom of Great Britain that changed the calculus for America’s slaveholding colonists as the Twelve Judges definitively declared slavery was not “allowed and approved by the laws of this Kingdom, and could only be legal by a “positive law.”
The Founding Generation knew to a legal certainty that the Declaratory Act of 1766 had voided colonial slave statutes and all racialized laws ten years earlier, and there were no “positive laws” authorizing slavery within colonial America on July 4, 1776—as the Somerset decision had already struck down “American Laws” by ruling slavery was not “allowed and approved by the laws of this Kingdom” in 1772. Moreover, after declaring these erstwhile Englishmen, now Americans to be a new nation of people—America’s Founding Generation and over Thomas Jefferson’s objections fastened the United States of America and its people to the English rule of law.
Further, after declaring the United States an independent nation, the fifty-six delegates of the Continental Congress who signed the Declaration of Independence—a legal instrument and a compact by and between the English citizens living in colonial America did come to purport an exclusion of 20 to 25 % of its 2.5 million population—all English citizens with African ancestry, all who had legal rights under England’s Magna Carta of 1215 and the English rule of law.
The purported “exclusion” from the Declaration was based on claims that this class of English citizens were slaves, legally owned by white English citizens. However, this was a calculated action and a last-ditch attempt by slaveholding Americans and others to preserve the tradition of hereditary slavery, as the practice was illegal under the English rule of law and now without the facial protection of the British imperial government—people’s fortunes, reputations, and legacies were at risk.
The Treaty of Paris of 1783 ended hostility between the British and the United States, and both nations agreed to “set at liberty” each other’s citizens after ratification, yet 500,000 presumptive English citizens were denied the due process of law and then exploited as being slaves owned by American citizens based upon “colonial statutes.” Under the English rule of law announced in the case of Rex v. Stapylton (K.B. 1771) the United States and its citizens had the legal burden of establishing legal ownership of black colonials after the American Revolution in 1783 ended and the lawful exclusion of black colonials from the Declaration of Independence; they did neither.