In the early 1640s, a series of civil wars erupted between Royalists and Parliamentarians. The Parliamentarians won the civil wars, which led to the English monarchy’s replacement with the Commonwealth of England under Oliver and Richard Cromwell. Constitutionally, the actions established the precedent that an English monarch cannot govern without Parliament’s consent. And the principle of parliamentary sovereignty or supremacy was legally established as part of the Glorious Revolution in 1688. The following year, Parliament codified parliamentary sovereignty in the English Bill of Rights of 1689. The parliamentary sovereignty principle holds that this legislative body has absolute sovereignty and is supreme over all other government institutions, including executive and judicial bodies.
The English Bill of Rights of 1689 stripped England’s monarch of royal powers. The Act specially declared “That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal.” Additionally, “That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late is illegal.” And thereby, this Act of Parliament declared parliamentary sovereignty. Varied English constitutional scholars such as A. V. Dicey opined that Parliament had the right to make or unmake any law whatever. Further, the law of England recognizes no person or body as having a right to override or set aside the legislation of Parliament.
Further, the English Bill of Rights of 1689 incorporated in law the conviction that although some people may inherit privileges, all English citizens have “basic rights.” Fundamental was the right to liberty that could not be capriciously interfered with, abolished, or changed by the government and the right to the due process of English law. These “basic rights” were conferred unto everyone in the Kingdom, as Parliament did not take this opportunity to exclude foreigners. Moreover, England was “a nation of laws, not men,” and “no one was above or below English law.” By way of the English Bill of Rights of 1689, Parliament conferred “basic rights” upon black people living in colonial North America, and colonial slave laws were denying the power and authority of Parliament to do so.
Dicey and other English constitutional scholars concluded that there were three sources for parliamentary sovereignty: (1) sovereignty by an Act of Parliament itself; (2) the complex relationship between all parts of government and their historical development and (3) the English courts that enforced all Acts of Parliament without exception. The Parliament of Great Britain was conferred parliamentary sovereignty over the colonies in North America by all three.
Firstly, Parliament’s English Bill of Rights of 1689 declared Parliament’s supreme power over the colonies: parliamentary sovereignty. Then Parliament’s Declaratory Act of 1766 declared Parliament with “full power to make laws and statutes of sufficient force and validity to bind the colonies and people of America… in all cases whatsoever.” Parliament’s Declaratory Act of 1766 affirmed parliamentary sovereignty, legislatively avoided colonial statutes and laws, and recalibrated colonial legislative assemblies’ devolved power to enact laws in 1766. The Act limited the power of colonial legislative bodies to enact statutes, laws, resolutions, votes, orders, and proceedings with Parliament’s permission, as provided for in colonial charters, and declared “all resolutions, votes, orders, and proceedings” in the colonies that denied or questioned Parliament’s power and authority to make laws binding the colonies “in all cases whatsoever” were “utterly null and void to all in purposes whatsoever.” And in real terms, the Declaratory Act of 1766 recalibrated the imperial relationship with its wayward colonial legislative assemblies in North America by reaffirming parliamentary sovereignty. The abolishment of repugnant colonial statutes, laws, orders, and resolutions that denied or challenged “the power and authority of the parliament of Great Britain, to make laws and statutes” restored colonial legislative systems to status quo ante. Thus, Parliament’s legislation rendered all colonial statutes, laws, and resolutions that challenged Parliament’s power “utterly null and void” in 1766.
Fundamentally, all colonial slave statutes and related regulations denied and questioned the power and authority of Parliament’s English Bill of Rights of 1689 since the Act codified “basic rights” of everyone within the Kingdom. Colonial slavery denied liberty and due process under English law to blacks born in colonial America and Africans. In particular, the fundamental rights… in particular, “due process rights” and “Liberties,” could not be taken away, abolished, or interfered with by the government in the absence of the due process of English law. Moreover, foreigners in the realm had the right to due process under the rule of English law. With little debate, the enactment of slave statutes and related regulations by colonial legislative assemblies that facilitated the subsequent passage of hereditary slave statutes and laws denied and questioned: “the power and authority of the parliament of Great Britain, to make laws binding the colonies.” Doubtlessly, by enacting colonial slave laws, colonial legislative assemblies assumed and exercised Parliament’s power and authority.
Furthermore, colonial legislative assemblies enacted colonial slave statutes and passed resolutions in the absence of lawful authority. These actions by colonial assemblies violated the Royal Assent by Commission Act of 1541 and the Sedition Act of 1661 that criminalized a legislature within the Kingdom that purported to enact a statute or law without the King’s permission. Colonial legislative bodies, by enacting colonial slave statutes and related regulations “suspended” (overruled) English laws like jus soli, partus sequitur patrem, and the due process of English law, specified in England’s Magna Carta and the English Bill of Rights of 1689 and did not seek or receive Parliament’s consent. The colonial legislative assemblies did not have plenary power and authority to overrule or change English laws.
Lastly, the enactment of the hereditary slave statute and law of partus sequitur ventrem required all colonial legislative assemblies in North America to secure Parliament’s permission before “overturning” the English common law traditions of jus soli: birthright subjecthood and partus sequitur patrem: a patrilineal descent system. Indeed, enslaving people born in colonial North America and subjecting captive Africans to toil as a slave required Parliament’s permission. Each colonial assembly in North America failed to do so. Thus, under the Declaratory Act of 1766 and as a matter of English law, colonial slave statutes and all related regulations authorizing colonial slavery were legislatively avoided in North America’s colonies. After 1766, colonial slavery operated extralegally and afoul of Parliament’s supreme power and legislative authority.