The What Behind it All

How would our view of reparations, restitution, restorative justice (or whatever other term one might prefer) be affected if history confirmed that slavery in England’s colonies had been declared illegal well before the American Revolution? What if, before the founding of our Nation, everyone held in bondage had actually been confirmed by Great Britain’s highest court to possess the full rights of English citizenship? In our view, that’s exactly what happened.

In the beginning, way back in 1619, the first nineteen Africans arriving on the shores of Virginia were understood to have had the status of indentured servants, in accordance with English common law. In short, they possessed the same “rights of Englishmen” as all other Virginians. For this reason the subsequent “legalization” of slavery by colonial legislatures was anything but that. Instead, as English common law decreed, these enslaved by white colonists throughout the 17th and 18th centuries actually retained their rights as citizens even as they were treated as “chattel property.” With respect to English legal precedent, they were, by common law definition, as free as those who bought and sold them.

This truth received powerful reaffirmation in the 1772 Somerset vs. Stewart case, when England’s highest court declared that slavery was “not allowed or approved by the laws of this Kingdom” and could only be enacted through the application of “positive law.” None of the colonial slave codes qualified as “positive law” as they had not been officially approved by British parliament, in which the King participated directly. Moreover, in the aftermath of the Stamp Act Crisis (1765-67) Parliament anticipated this point very directly when passing the Declaratory Act making it clear that it, with the King included, should “legislate over the colonies in all cases whatsoever.” English law alone was to prevail within the colonies. According to the Somerset Decision and the Parliament mandated to enforcing it, the enslaved held every right in British citizenship, that is, freedom from chattel bondage, but not, we must hasten to add, the expectation of political or social justice.

Not that this made a whit of difference to the profit-hungry English slavers who delivered an estimated 310,000 shackled West Africans to the Colonies between 1660 and 1776. In this vital respect, Somerset was truly a dead letter decision and also a Decision that left colonists uncertain as to whether or not Mansfield had intended his decision to apply outside England proper.

But such issues are not germane when thinking historically about reparations, restitution, or restorative justice. What counts is that while Somerset had ruled for freedom as binding jurisprudence, the enslaved behaved as if it had force by behaving like profoundly rights-deprived people. They fled, resisted, and rebelled. When they did so during the Revolution, British imperialists, and rebellious colonists well-versed in Somerset assumed that the “rights of Englishmen” pertained to these black rebels and acted accordingly.

None was more sensitive to this situation than slaveholding Thomas Jefferson, whose indictment of the King as an emancipator of the enslaved was edited out of the Declaration of Independence at the last minute by zealously proslavery colleagues. After blaming the King (not himself and fellow slaveholders) for fastening black bondage upon the unwilling white colonists. Jefferson concluded by accusing the King of: “… exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded them; thus paying of former crimes committed against the Liberties of one people, with crimes which he urges them to commit against the lives of another.”

Along with its gross-deception… Jefferson’s indictment persuasively documents his fearful concerns over Somerset’s applicability on his own Virginia plantation. Though once dead in the beloved Monticello, Somerset had come into force in 1775 when its Governor Lord John Murray Dunmore issued a Proclamation promising freedom to those enslaved who took up arms in opposition to the Patriots cause. As Dunmore saw it, all the colonists, not just the white ones, held English citizenship and the Patriots who now rejected it were nothing more than traitors while slaves who picked up arms were doing their duty as English subjects. In short, his view and Lord Mansfield’s Somerset Decision lined up perfectly. English law made slavery illegal in its colonies.

Leaping ahead to the end of the Revolution, in 1783, and to the aftermath of the Treaty of Paris that confirmed British defeat we find George Washington struggling to deny this truth during negotiations with British General Guy Carleton. Carleton insisted that black as well as white loyalists who had been captured by the Americans were in point of legal fact English citizens and always had been. They must therefore by fully included when the two exchanged prisoners. Claiming that black loyalists had been declared by Colonial statute to be human property long before the Revolution, Washington refused and the stalemate was broken only after the two negotiators had agreed that each should compile registries listing captured black loyalists by name in American and English versions of what became known as The Book of Negroes. These listing, it was agreed would serve as the basis for further negotiations that led to further disagreements.

Though Carleton had capitulated he did manage to secure liberty for a fraction of the captured American black loyalists (3,000 or so). In his eyes, as English law required they had reclaimed their citizenship. In the end, for them, the Somerset Decision restored their “rights as Englishmen,” which confirms once more that after 1772, enslavement within the colonies had been patently illegal.

Dr. James Brewer Stewart
James Wallace Professor of History Emeritus
Macalester College, St. Paul, Minnesota
Founder, Historians Against Slavery