Founding Fathers
In the book Slave Nation: How Slavery United the Colonies and Sparked the American Revolution, historians Alfred and Ruth Blumrosen observed that while many Patriots throughout colonial America professed an abhorrence to slavery on moral grounds, all quickly capitulated to proslavery interest for the sake of unity in the run-up to the American Revolution.
The Founding Fathers did so because they collectively benefitted from the continued exploitation of enslaved blacks, as their status and exploitation as human capital were used to finance the rebellion. After the war ended, black slavery had a transcendent importance in America’s emerging economy.
The Founders declared independence from England in July 1776. They faked the claim that the British government’s Declaratory Act was an unconstitutional overreach and an infringement of their rights and liberties as Americans. According to historical accounts, at the signing of the Declaration of Independence, Founding Father Benjamin Franklin quipped, “We must all hang together, or assuredly we shall all hang separately.” Franklin’s remark underscored the gravity and risk of their actions, as the signatories were committing treason against the British Crown and could face execution if their bid for independence failed.
Decidedly, the coming together of the Founding Fathers created an uneasy alliance of divergent ideologies, and as historian Edmund S. Morgan observed in his book American Slavery, American Freedom: The Ordeal of Colonial Virginia, “The men who came together to found the independent United States, dedicated to freedom and equality, either held slaves or were willing to join hands with those who did… None of them felt entirely comfortable about the fact, but neither did they feel responsible for it. Most of them had inherited both their slaves and their attachment to freedom from an earlier generation, and they knew the two were not unconnected.”
Thomas Jefferson’s initial draft of the Declaration of Independence included language that condemned the people of England and King George III for perpetuating slavery, describing it as a “cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere.” Further, Jefferson asserted in one of his earlier iterations of the historic preamble that “all men are born equally free and independent.”
The Founding Fathers understood that most slaves in the colonies were born locally rather than being imported into the colonies from Africa, a “distant land.” They recognized that it was the American Patriots themselves who were now perpetrating the “cruel war against human nature itself.” Concerned that this language could jeopardize any chance of an amicable settlement or even their lives if the rebellion failed, the Founding Fathers ultimately decided to remove it.
Moreover, the slave-holding Patriots from southern colonies owed their wealth and status to their families’ long-term relationship with the Crown and the institution of colonial slavery. The Founding Generation’s revisions to Jefferson’s initial draft underscore the importance and conclusiveness of the remaining grievances, one of which accused King George III of “abolishing our most valuable laws and altering fundamentally the Forms of our Governments.”
Thomas Jefferson recognized that the practice of slavery ran afoul of English law and that English law and its controlling precedent nullified the Patriots’ slave ownership claims. This concern caused Jefferson and some slave-holding members of the First Congress to be in support of the adoption of Roman Law, which allowed and contemplated people being born into slavery on sovereign soil and, most importantly, would enable the United States to break free from Anglo-Saxon jurisprudence and English law. Jefferson’s thoughtful suggestion for creating a slaveocracy in the United States was legislatively defeated in July 1776.
By rejecting Jefferson’s suggestion of Roman Law and as the U.S. Congress and each State government legislature formally aligned with the jurisprudence of the United States by adopting English law, it significantly impacted slave-holding white Patriots. English subjecthood was extended to all black individuals born in the American colonies.
Further, the U.S. Constitution, ratified in 1788, laid the groundwork for a legal system influenced by English common law. One of the first acts of the new Congress was the Judiciary Act of 1789. This Act established the federal judiciary and mandated that federal courts would operate under English common law principles. This supports the repudiation of Taney’s findings in Dred Scott, which declared that 500,000 black colonials were legal slaves owned by white Americans since “a void act does not become good with the passage of time.” Under English law, colonial slave statutes and hereditary slave laws remained legal nullities, and these principles bound the U.S. Supreme Court in the Dred Scott case.
Lord Mansfield reaffirmed this principle of due process in R. v. Stapylton (K.B. 1771), which determined that a person claiming slave ownership bears the burden of proof and that “being black will not prove the property.”
Furthermore, England’s High Court, in the Somerset decision of 1772, ruled that slavery was not “allowed or approved” by the law of this Kingdom. It could only be legal through “positive law,” a legislative power vested solely with the British Parliament. Consequently, the Founding Generation did not legally own other human beings during colonial times based upon colonial slave statutes and laws enacted by colonial assemblies. This “stubborn fact” became unassailable once the U.S. Congress did not repudiate Anglo-Saxon jurisprudence and English law after declaring independence, despite Jefferson’s warnings and vehement objections in mid-July 1776.