Conquest & Discovery
Under International law, a distinction is made in governing a colonized "wasteland," (or vacant land,) and a land acquired by treaty or cession, which had already been cultivated and organized. If an uninhabited country was discovered and planted by British subjects, the English laws were said to be immediately in force there - for the law was the birthright of every subject, carried wherever they went. However, the entire body of English law was understood to have application to these new circumstances only to the extent that it was found to be applicable to the settlers' new situation and consistent with their local comfort and prosperity.
A different rule applied to conquered and ceded countries that already had laws of their own. In such cases, the English Crown had a right to abrogate the former laws and institute completely new ones. Until such new laws were promulgated, the old laws and customs of the country remained in full force to the extent that they were not contrary to religion or morals.
Justice Blackstone, in his "Commentaries" took the position that American colonies were to be deemed principally conquered or ceded countries. He stated: "Our American Plantations are principally of this later sort, [i.e. ceded or conquered countries,] being obtained in the last century either by right of conquest and driving out the natives, (with what natural justice I shall not at present inquire,) or by treaties. And, therefore, the common law of England, as such, has no allowance or authority there; they being no part of the mother country, but distinct, though dependent dominions." [1 Bl. Comm 107; Chitty on Prerog. Ch. 3, p 29.] (Emphasis mine.)
According to Justice Story, in a conquered country, where there were no existing laws, or none adaptable to a civilized community, or where the laws were silent, or were rejected and none substituted, the territory must be governed according to the rules of natural equity and right. Englishmen settling there must be deemed to carry with them those rights and privileges that belong to them in their native country. [2 Salk. 411, 412; See also Nall v. Campbell, Cowp. R. 204, 211, 212; 1 Chalm. Ann. 14,15, 678, 679, 689, 690; 1 Chalm. Opinions, 194; 2 Chalm. Opinions, 202; Chitty on Prerog. ch. 2; 2 Wilson's Law Lect. 48, 49.]
"Moreover," states Justice Story, "even if it were possible to consider the case, as a case of conquest from the Indians, it would not follow, if the natives did not remain there, but deserted it, and left it a vacant territory, that the rule as to conquests would continue to apply to it. On the contrary, as soon as the crown should choose to found an English colony in such vacant territory, the general principle of settlements in desert countries would govern it. It would cease to be a conquest, and become a colony; and as such be affected by the British laws. This doctrine is laid down with great clearness and force by, Lord Mansfield, in his celebrated judgment in Hall v. Campbell, (Cowp. R. 204, 211, 212.) In a still more recent case it was laid down by Lord Ellenborough, that the law of England might properly be recognised by subjects of England in a place occupied temporarily by British troops, who would impliedly carry that law with them." [Rex v. Brampton, 10 East R. 22, 288, 289.] (Emphasis mine.)
Justice Taney in Martin v. Waddell's Lessee, 41 U.S. 367 (1842) confirms:
"The English possessions in America were not claimed by right of conquest, but by right of discovery. For, according to the principles of international law, as understood by the then civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered. Whatever forbearance may have been sometimes practised towards the unfortunate aborigines, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe, at their pleasure, as if it had been found without inhabitants..."
The ideological legal foundation for the American colonists' assertion of the right to English liberties and common law rested upon the validity of the claim that the colonies were vacant lands or "wastelands" settled by Englishmen and subject to English law. It is upon this foundation, in part, that the colonists justified their right to revolt against English acts of tyranny in regard to their liberties and rights.
RIGHTS OF CONQUEST
(Reference: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)
CONQUEST, international law. The acquisition of the sovereignty of a country by force of arms, exercised by an independent power which reduces the vanquished to the submission of its empire.
It is a general rule, that where conquered countries have laws of their own, these laws remain in force after the conquest, until they are abrogated, unless they are contrary to our religion, or enact any malum in se. In all such cases the laws of the conquering country prevail; for it is not to be presumed that laws opposed to religion or sound morals could be sanctioned. 1 Story, Const. Sec. 150, and the cases there cited.
Conquest does not, per se, give the conqueror plenum dominium et utile, but a temporary right of possession and government. 2 Gallis. R. 486; 3 Wash. C. C. R. 101. See 8 Wheat. R. 591; 2 Bay, R. 229; 2 Dall. R. 1; 12 Pet. 410.
The right which the English government claimed over the territory now composing the United States, was not founded on conquest, but discovery. Id. Sec. 152, et seq.
DISCOVERY
DISCOVERY, intern. law. The act of finding an unknown country.
The nations of Europe adopted the principle, that the discovery of any part of America gave title to the government by whose subjects, or by whose authority it was made, against all European governments. This title was to be consummated by possession. 8 Wheat. 543.
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