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sion of this Crown, shall go out of the Dominion of England, Scotland, or Ireland, without the Consent of Parliament.
“That from after the Time that the further Limitation by this Act shall take Effect, all Matters and Things relating to the well governing of this Kingdom, which are properly cognizable in the Privy Council by the Laws and Customs of this Realm, shall be transacted there, and all Resolutions taken thereupon shall be signed by such of the Privy Council as shall advise and consent to the same.
“That after said Limitation shall take Effect as aforesaid, no Person born out of the Kingdoms of England, Scotland, or Ireland, or the Dominions thereunto belonging (although he be naturalized or made a Denizen, except such as are born of English Parents), shall be capable to be of the Privy Council, or a Member of either House of Parliament, or to enjoy any Ofice or Place of Trust, either Civil or Military, or to have any Grant of Lands, Tenements, or Hereditaments from the Crown, to himself or to any other or others in Trust for him.
" That no Person who has an Office or Place of Profit under the King, or receives a Pension from the Crown, shall be capable of serving as a Member of the House of Commons.
“ That after the said Limitation shall take Effect as aforesaid, Judges' Commissions be made Quamdiu se bene gesserint, and their Salaries ascertained and established; but upon the Address of both Houses of Parliament it may be lawful to remove them.
" That no Pardon under the Great Seal of England be pleadable to an Impeachment by the Commons in Parliament.
“ And whereas the Laws of England are the Birth-right of the People thereof, and all the Kings and Queens, who shall ascend the Throne of this Realm, ought to administer the Government of the same according to the said Laws, and all their Officers and Ministers ought to serve them respectively according to the same ”—The said Lords Spiritual and Temporal, and Commons, do therefore further humbly pray, That all the Laws and Statutes of this Realm for securing the established Religion, and the Rights and Liberties of the People thereof, and all other Laws and Statutes of the same now in Force, may be ratified and confirmed, and the same are by his Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, and by Authority of the same, ratified and confirmed accordingly.
INTRODUCTORY OBSERVATIONS—CONSTITUTIONAL POSITION OF THE COLONISTS-LAW
OF NATIONS ON THE SUBJECT OF COLONIAL SETTLEMENTS: IN COUNTRIES HAY-
VANIA-DELAWARE-NORTH AND SOUTH CAROLINA-GEORGIA.
We have now come to a period at which the justice and enlightenment of England were to be submitted to severe tests.
After a contest of four hundred and seventy-three years, extending from the day of Runnymede to the revolution which dethroned the Stuart dynasty, the rights and liberties of every English subject were at length secured by constitutional checks upon the royal power, and by a Parliament in which one house, composed of freely chosen popular representatives, was vested with the power of hindering legislation which might be injurious to the people. The rights of person and of property were now secure in England. It remained to be determined whether Englishmen, in the enjoyment of these rights at home, would stand by and support their fellow subjects in maintaining and defending them in the colonial settlements of North America.
The colonies had been permanently established under various auspices during the troubled reigns of the unhappy Stuarts and the earlier monarchs who succeeded them-apparently an unpropitious period for founding governments. Until the Revolution it was doubtful whether absolute or constitutional authority would prevail
in England; and although the monarchy, as regulated by the Bill of Rights and Act of Settlement, was afterwards so limited as to protect the subject from the encroachments of prerogative at home, yet of the constitutional relations of colonial dependencies to the mother country and the crown there still appeared to be no very clear intelligence, as there was certainly no authoritative exposition. Yet the English colonists of North America were clear on one point. They maintained that all the ancient rights and liberties of Englishmen were theirs by birthright; that to them, as much as to the Englishmen at home, belonged the guarantees of Magna Charta, and at a later date, of the Petition and the Bill of Rights; that in removing from their native land to its colonial possessions, they had sacrificed no portion of their ancient rights; and that, as Englishmen, they were entitled still to be protected by the guarantees of liberty which covered them before their emigration.
The law of nations, in the matter of colonial settlements, was altogether in their favor. There are, in general, two cases, which
be briefly stated as follows:
1. If the territory to be colonized is uninhabited, or only occupied by savages or wandering tribes, so that the country is without established laws or government, then the Government of which the colonists are subjects is immediately supreme, and all its laws, both for the regulation and for the protection of its subjects, are at once in force so far as they are applicable to the situation and condition of an infant colony. The artificial refinements and distinctions, , says Blackstone, “incident to a great and commercial people, are neither necessary nor convenient for them, and therefore are not in force.” What shall be admitted and what rejected, at what times and under what restrictions, must be decided by the joint action of their own provincial judicature, when established, and the sovereign power of which they are the subjects. There must thus be a division of the functions of supreme power; and in this, like every other instance of divided sovereignty, the relations of the provincial to the parent government will often be extremely delicate. But the status of the people is determined from the first. They remain the subjects of the parent Government, and being governed by the same laws, they are bound by the same obligations and invested with the same rights as before their emigration. The peculiar difficulty of such colonies is this, that laws by which the obligations of the subjects are defined will seem to be immediately in force, while institutions made for the security of rights, being not yet egtablished in the colony, or at best imperfectly establisbed, will be insufficient to protect the colonist in their enjoyment; and in every such case justice will require the spirit of the laws to be regarded rather than the letter. A discretionary application of laws is always dangerous. The tendency of governments is always to encroach upon the franchise of the subject; and the tendency in colonies is always to complete autonomy; so that a conflict is inev. itable if the former fail to put a liberal construction on colonial rights, or if the latter fail duly to recognize colonial obligations. When so much is left to human wisdom, virtue, and forbearance, history affords but little reason to expect a happy issue.
2. The second case is when a colony is to be planted in a conquered or ceded country which already has a code of laws, and governmental institutions for their execution. By the law of nations conquest gives to the victorious power an absolute authority over his conquered enemies, to whom, therefore, the conqueror's will becomes the only source of law; but this, “in reason and civil policy, can mean nothing more than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for the master, he will treat them for the future as subjects, and not as enemies.” (BLACKSTONE, Com. i. 103.) Cession of territory, when no stipulations to the contrary are made, conveys as absolute a sovereignty as conquest. Therefore, in a conquered or ceded country that has already laws of its own, the sovereign has a right to alter or abolish the existing laws; but till he actually does change or abolish them, they remain in full force over the inhabitants; and any of his subjects, colonists, or others who may settle in the conquered or ceded country, fall likewise under their control. In this case, if a colony be planted, there is little likelihood of conflict with the parent Government. The rights and obligations of the colonists being only such as it prescribes, immunities and privileges emanating solely from its gift, and it alone giving protection