Blackstone, Sir William
During the eighteenth century, the most influential English writer on such matters was Sir William Blackstone author, in 1765, of his famous Commentaries on the Laws of England.
Blackstone's starting point concerned the bases upon which Britain had acquired the colonies - or 'plantations', as they were sometimes called. His concern was to set out the rules of English law that had been developed over the years by the courts on two issues:
* The place of English law in the new colony
* Who had authority to change the laws of the colony
English law on these matters differed according to the basis on which they had been acquired by Britain - by 'settlement', on the one hand, or, on the other hand, by 'conquest' or 'cession'. Blackstone's analysis of these bases for the acquisition of colonies was, as he says, grounded in international law, also known as 'the law of nations'.
'Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country ... They are subject however to the control of the parliament... '
Blackstone's starting point concerned the bases upon which Britain had acquired the colonies - or 'plantations', as they were sometimes called. His concern was to set out the rules of English law that had been developed over the years by the courts on two issues:
* The place of English law in the new colony
* Who had authority to change the laws of the colony
English law on these matters differed according to the basis on which they had been acquired by Britain - by 'settlement', on the one hand, or, on the other hand, by 'conquest' or 'cession'. Blackstone's analysis of these bases for the acquisition of colonies was, as he says, grounded in international law, also known as 'the law of nations'.
'Plantations, or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it is held, that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country ... They are subject however to the control of the parliament... '
Keywords: Blackstone, Sir William, British law, colonialism, colonisation, conquest, settlements, 1765
'Commentaries on the Laws of England', 1765.
Author: Nettheim, Garth
Source: Blackstone, William
Author: Nettheim, Garth
Source: Blackstone, William