SMOKE, MIRRORS, AND CHAINS

Slavery was America's first continuing criminal enterprise. It was criminal enterprise because slavery was unlawful from its inception in 1640. Slavery flourished in America because the colonial government in derogation of the rule of law promoted and protected it. Conspiring with slave owners this conspiracy continued for over a century and was a principal catalyst for the American Revolution. America’s long-standing claim that slavery in America was legal is ahistorical. As early as 1702 Lord Chief Justice John Holt of England’s highest court declared in Smith v. Browne & Cooper “as soon as a Negro comes to England he is free: one may be a villain in England but not a slave.” The British poet William Cowper captured this sentiment when he wrote: “Slaves cannot breathe in England, if their lungs receive our air, that moment they are free. They touch our country and their shackles fall.” England’s constitution guaranteed liberty for all of His Majesty’s subjects. This right of liberty dates back to the Magna Carta of 1215. Slavery upon birth was forbidden as Article 39 in the Magna Carta provides "no freeman shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him, nor will we send upon him except upon the lawful judgment of his peers or the law of the land.” Slavery’s façade of legitimacy was inextricably linked to the colony of Virginia’s slave law of partus sequitur ventrem in 1662. The first colony to pass this law it decreed “all children borne in this country shall be bond or free according to the condition of the mother”. Children of slave women were born slaves and became the chattel of her master. However the problem with partus sequitur ventrem was that Virginia had no legal authority to pass such a law as it violated England's constitution and common law. Virginia's colonial charter barred it from passing laws that violated British laws. All colonial charters had the same limitation upon its colonial assemblies. England’s common law provided that the legal status of children born in colonies were determined by the condition of the father. However partus sequitur ventrem provided the opposite. As the law violated England’s common law to the extent it purported to determine children's legal status based upon the condition of the mother it was void ab initio. Second slavery in America was not legal because the common law of England was incompatible with slavery and neither recognized, nor permitted its existence. To the extent slavery was not authorized under British law no colony had the legal authority to create a class of “bond”. Even though colonial charters prohibited its assemblies from passing partus sequitur ventrem it became endemic throughout the British Empire. No different from “Jim Crow Laws” enacted after the Civil War there was a de facto state of slavery throughout the British Empire. Suddenly in derogation of common law English subjecthood and the constitutional right of liberty upon birth in America was for "Whites Only.” Blacks born in colonial America were unlawfully divested of their English subjecthood, made slaves and colonial government corruption made it possible. The British colonial government created de facto slavery in America as it failed to enforce the rule of law. But merely because a corrupt colonial government granted protection for slavery in America did not transform it into a legal enterprise. In 1772 in the case of Somersett v. Stewart the twelve Justices of the King's Bench headed by Lord William Murray also known as Lord Chief Justice Mansfield entered a unanimous verdict declaring slavery was not authorized in England. England’s highest court declared no positive law existed in England authorizing slavery. The High Court’s ruling struck down all forms of de facto slavery in America. The verdict granted liberty to James Somersett and 15,000 others Black slaves in England and Wales. The Somersett verdict declared England had no slave laws and by operation of law declared partus sequitur ventrem void ab initio. Only Parliament had the authority to enact partus sequitur ventrem and it had not done so. In modern context, the King’s Bench ruled slavery was unconstitutional and not authorized throughout the British Empire. Brilliantly orchestrated by Lord Chief Justice Mansfield the unanimous King’s Bench verdict delivered a mortal legal blow to de facto slavery throughout the British Empire. America’s slave owners understood the legal consequence of the Somersett verdict. Slavery was declared unlawful by the King’s Bench. Likewise, slave owners knew colonial governors could no longer offer them protection for their unlawful enterprise and committed themselves to independence. If the Founding Fathers obeyed the Somersett verdict there would have been no more slavery or slaves in America. The Somersett verdict was restorative, corrective and the rule of law. This was a historic decision as it overruled all forms of de facto slavery throughout the British Empire. Slavery was adjudged illegal in America. In understanding the Somersett case and the clues left by Lord Chief Justice Mansfield it will allow America to confront our past and to understand why race matters so much. It will allow us to get to the heart of where we truly come from as a Nation. This is a historical narrative of a landmark legal decision that have profoundly affected millions of people and shaped this Nation.