HKB
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.