Reflections On Blackstone
Blackstone refers to those colonies which are acquired by 'right of occupancy' - generally described in English law as 'settled colonies' - as those which are found to be 'desert and uncultivated'.
By 'desert', he was not referring to arid sandhills, but to lands which were deserted, uninhabited, literally terra nullius. Such a country will, of course, be 'uncultivated', and he speaks of 'desert and uncultivated', not 'desert or uncultivated'. He doesn't expressly refer to colonies which are inhabited but uncultivated. And, later, he simply speaks of 'an uninhabited country'.
On the other hand, he describes the alternative grouping of colonies - those acquired by conquest or cession - as being 'already cultivated', so he seems to have in mind Vattel's notion that lands which are inhabited, but not cultivated, can be taken over simply by moving in, without the need for formal conquest or cession.
Blackstone also makes the point that conquered and ceded colonies 'have already laws of their own'. This suggests that settled colonies do not. If they are inhabited, though uncultivated, they presumably will have laws of their own. Are these laws - and rights under these laws - to be disregarded? All Blackstone says is that the English settlers carry their laws with them. English laws come in; it does not follow that the prior laws go out.
But it seems that there was an assumption that a people who did not cultivate the soil either did not have anything which could be described as law, or, if they did, such a law was too primitive to be acknowledged.
Keywords: Blackstone, Sir William, British law, colonialism, colonisation, conquest, settlements, terra nullius
Author: Nettheim, Garth