"The absolute rights of Englishmen, as frequently declared in parliament, from Magna Charta, to this time, are the rights of personal security, personal liberty and of private property.
"The allegiance of British subjects being natural, perpetual and inseparable from their persons, let them be in what country they may; their rights are also natural, inherent and perpetual.
"By the laws of nature and of nations; by the voice of universal reason, and of God, when a nation takes possession of a desart, uncultivated, uninhabited country, or purchases of savages, as was the case with far the greatest part of the British settlements; the colonists transplanting themselves and their posterity, though separated from the principal establishment, or mother country, naturally become part of the state with its ancient possessions, and entitled to all the essential rights of the mother country. This is not only confirmed by the practice of the ancients, but by the moderns ever since the discovery of America. Frenchmen, Spaniards, and Portuguese are no greater slaves abroad than at home; and hitherto Britons have been as free on one side of the Atlantic as on the other: and it is humbly hoped that his majesty and the parliament will in their wisdom be graciously pleased to continue the colonies in this happy state."
"It is presumed, that upon these principles, the colonists have been by their several charters declared natural subjects, and entrusted with the power of making their own local laws, not repugnant to the laws of England, and with the power of taxing themselves."
"This legislative power is subject to the same charter to the king's negative as in Ireland. This effectually secures the dependence of the colonies on Great Britain. By the 13th of George 2. ch. 9. even foreigners having lived seven years in any of the colonies are deemed natives on taking the oaths of allegiance, &c. and are declared by the said act to be his majesty's natural born subjects of the kingdoms of Great Britain, to all intents, constructions and purposes, as if any of them had been born within the kingdom. The reasons given for this naturalization in the preamble of the act are, that the increase of the people is the means of advancing the wealth of any nation or country. And many foreigners and strangers, from the lenity of our government, the purity of our religion, the benefit of our laws, the advantages of our trade, and the security of our property, might be induced to come and settle in some of his majesty's colonies in America, if they were partakers of the advantages and privileges, which the native born subjects there enjoy.
"The several acts of parliament and charters, declaratory of the rights and liberties of the colonies, are but in affirmance of the common law and law of nature in this point. There are, says my lord Coke, regularly three incidents to subjects born; 1. Parents under the actual obedience of the king; 2. That the place of his birth be within the king's dominions; 3. The time of his birth to be chiefly considered.
"For he cannot be a subject born of one kingdom, that was born under the allegiance of a king of another kingdom. See Calvin's case and the several acts and decisions on naturalization, from Edward the third to this day. The common law is received and practised upon here and in the rest of the colonies; and all ancient and modern acts of parliament, that can be considered as part of or in amendment of the common law, together with such acts of parliament, as expressly name the plantations, so that the power of the British parliament is held sacred and as uncontroulable in the colonies, as in England. The question is not upon the general power or right of the parliament; but whether it is not circumscribed within some equitable and reasonable bounds? It is hoped it will not be considered as a new doctrine, that even the authority of the parliament of Great Britain is circumscribed by certain bounds, which, if exceeded, their acts become those of mere power without right, and consequently void. The judges of England have declared in favour of these sentiments, when they expressly declare, that acts of parliament against natural equity are void. That acts against the fundamental principles of the British constitution are void. A very important question here presents itself. It essentially belongs to the society, both in relation to the manner, in which it desires to be governed, and to the conduct of the citizens. This is called the legislative power.—The nation may entrust the exercise of it to the prince or to an assembly; or to an assembly and the prince jointly; who have then a right of making new and abrogating old laws. It is here demanded whether, if their power extends so far, as to the fundamental laws, they may change the constitution of the state? The principles we have laid down lead us to decide this point with certainty, that the authority of these legislators does not extend so far, and that they ought to consider the fundamental laws as sacred, if the nation has not in very express terms given them the power to change them. For the constitution of the state ought to be fixed; and since that was first established by the nation, which afterwards trusted certain persons with the legislative power, the fundamental laws are excepted from their commission. It appears that the society had only resolved to make provision for the state's being always furnished with laws, suited to particular conjunctures, and gave the legislature for that purpose, the power of abrogating the ancient civil and political laws, that were not fundamental, and of making new ones. But nothing leads us to think that it was willing to submit the constitution itself to their pleasure.
"When a nation takes possession of a distant country and settles a colony there, that country though separated from the principle establishment or mother country, naturally becomes a part of the state equally with its ancient possessions. Whenever the political laws or treaties make no distinction between them every thing said of the territory of a nation ought also to extend to its colonies. An act of parliament made against natural equity, as to make a man judge in his own cause, would be void, Hob. 87. Trin. 12. Jac. Day v. Savage, S. C. & P. cited Arg. 10. Mod. 115. Hill 11. Ann C. B. in case of Thornby & Fleetwood, "but says that this must be a clear case, and judges will strain hard rather than interpret an act void, ab initio." This is granted, but still their authority is not boundless, if subject to the controul of the judges in any case. Holt, chief justice, thought what lord Coke says in Dr. Bonham's case a very reasonable and true saying, that if an act of parliament should ordain the same person both party and judge, in his own case, it would be a void act of parliament, and an act of parliament can do no wrong, though it may do several things that look pretty odd; for it may discharge one from the allegiance he lives under, and restore to the state of nature, but it cannot make one that lives under a government both party and judge, per Holt C. J. 12 Mod. 687. 688. Hill 13. W. 3. B. R. in the case of the city of London v. Wood. It appears in our books, that in several cases, the common law should controul acts of parliament, and sometimes adjudge them to be utterly void; for when an act of parliament against common right and reason, or repugnant and impossible to be performed, the common law shall controul it, and adjudge it to be void, and therefore, 8 E. 3., 30. Thomas Tregor's case upon the statute of W. 2. cap. 38. and Art. Chart. 9. Herle said that sometimes statutes are made contrary to law and right, which the maker of them perceiving will not put them into execution. This doctrine is agreeable to the law of nature and nations. and to the divine dictates of natural and revealed religion. It is contrary to reason that the supreme power should have a right to alter the constitution. This would imply that those who are intrusted with sovereignty by the people, have a right to do as they please. In other words, that those, who are invested with power to protect the people and support their rights and liberties, have a right to make slaves of them. This is not very remote from a flat contradiction. Should the parliament of Great Britain follow the example of some other foreign states, Sweden, Denmark, France, &c. and vote the king absolute and despotic; would such an act of parliament make him so? Would any minister in his senses advise a prince to accept of such an offer of power? It would be unsafe to accept of such a donation because the parliament or donors would grant more than it was in their power lawfully to give, the law of nature never invested them with a power of surrendering their own liberty, and the people certainly never intrusted any body of men with a power to surrender theirs in exchange for slavery. But if the whole state be conquered if the nation be subdued, in what manner can a victor treat it without transgressing the bounds of justice? What are his rights over the conquest? Some have dared to advance this monstrous principle, that the conqueror is absolute master over this conquest, that he may dispose of it as his property, treat it as he pleases, according to the common expression of treating a state as a conquered country, and hence they derive one of the sources of despotic government.—But enough of those that reduce men to the state of transferable goods, or use them like beasts of burden, who deliver them up as the property or patrimony of another man. Let us argue upon principles countenanced by reason, and becoming humanity. The whole right of the conqueror proceeds from the just defence of himself, which contains the support and prosecution of his rights. Thus when he has totally subdued a nation with whom he had been at war, he may without dispute cause justice to be done him, with regard to what gave rise to the war, and require payment for the expense and damage he has sustained; he may, according to the exigency of the place, impose penalties on it as an example; he may, should prudence so dictate, disable it from undertaking any pernicious design for the future. But in securing all these views the mildest means are to be preferred. We are always to remember, that the law of nature permits no injury to be done to an enemy, unless in taking measures necessary for a just defence and a reasonable security. Some princes have only imposed a tribute on it; others have been satisfied in stripping it of some of its privileges, dismembering it of a province, or keeping it in awe by fortresses; others, as their quarrel was only with the sovereign in person, have left a nation in the full enjoyment of its rights, only setting a sovereign over it. But if the conqueror thinks proper to retain the sovereignty of the vanquished state, and has such a right; the manner in which he is to treat the state still flows from the same principles. If the sovereign be only the just object of his complaint, reason declares, that by his conquest he acquires only such rights as actually belonged to the dethroned sovereign; and on the submission of his people he is to govern it according to the laws of the state. If the people do not voluntarily submit, the state of war subsists. When a sovereign, as pretending to have the absolute disposal of a people whom he has conquered, is for enslaving them, he causes the state of war to subsist between this people and him. M. De Vattel, B. 3. c. 10. sec. 201.
"It is now near three hundred years since the continent of North America was first discovered, and that by British subjects; the Cabots discovered the continent before the Spaniards. Ten generations have passed away, through infinite toils and bloody conflicts, in settling this country. None of those ever dreamed, but that they were entitled at least to equal privileges with those of the same rank born within the realm.