By the 22 & 23 Car. 2. cap. 26. against the Planting of Tobacco here, and for the Regulation of the Plantation Trade, the Governors of those Plantations are once a Year to return to the Custom-house in London an Account of all Ships laden, and of all the Bonds, &c. And they are, throughout the whole Act, called the King's English Plantations, Governors of such English Plantations, to some of the English Plantations; and Parag. 10. 'tis said, Inasmuch as the Plantations are inhabited with his Subjects of England; and so 'tis in 15 Car. 2. cap. 7. sect. 5. and in 12 Car. 2 cap. 34. they are called Colonies and Plantations of this Kingdom of England. From all which 'tis natural to infer, That the Rules in case of conquered Places cannot prevail here; Conquest est res odiosa, and never to be presumed; besides, 'tis the People, not the Soil, that can be said to be conquered. The Reason of a Conqueror's Power to prescribe Laws, is the Conqueror's Clemency, in saving the Lives of the conquered, whom, by the Strict Right of War, he might have destroyed; or the presumed Chance of Subjection, which the conquered Prince and People threw themselves upon, when they first engaged in the War. But this is not pretended to here, tho' all the Cases about this Subject were [32] put below Stairs: Then taking it as the Truth is, certain Subjects of England, by Consent of their Prince, go and possess an uninhabited desert Country; the Common Law must be supposed their Rule, as 'twas their Birthright, and as 'tis the best, and so to be presumed their Choice; and not only that, but even as Obligatory, 'tis so. When they went thither, they no more abandoned the English Laws, than they did their Natural Allegiance; nay, they subjected themselves no more to other Laws, than they did to another Allegiance, which they did not.
This is a Dominion, belonging not only to the Crown, but to the Realm of England, tho' not within the Territorial Realm. Vaughan 330. says, That they follow England, and are a Part of it. Then 'twas argued further, if 'twere possible that it should be otherwise, when did the Common Law cease? On the Sea it remained in all Personal Respects; If Batteries or Wounds on Shipboard, Actions lay here: Then the same held when they landed there, and no new Laws could be made for them but by the Prince with their Consent.
Occupancy.—Besides, Either the Right of these Lands was gained to the Crown, or to the Planters, by the Occupancy; and either way the Common Law must be their Rule: It must be agreed, That the first Entry gained the Right, and so is Grotius de jure Belli & Pacis, lib. 2. cap. 8. sect. 6. and these Lands were never the King's, tho' they afterwards submitted to take a Grant of the King. 'Tis true, in case of War, what is gained, becomes his who maintained the War, and doth not of Right belong to that Person who first possessed it. Grot. lib. 3. cap. 6. sect. 11. But in case it be not the Effect of War, but only by Force of their first Entry, it must be considered what Interest they did acquire, and certainly 'twas the largest that can be; for an Occupant doth gain an Inheritance by the Law of Nations, and the same shall descend; then by the Rules of what Law shall the descent be governed? It must be by the Laws of the Country to which they did originally, and still do belong. But then supposing the Lands gained to the Crown, and the Crown to distribute those Lands, the Grant of them is to hold in Socage, and that is a common Law Tenure; why are not their Persons in like Manner under the Common Law? When a Governor was first received by, or imposed upon them, 'twas never intended, either by King or People, that he should Rule by any other Law than that of England. And if it had been known to be otherwise, the Number of Subjects there would have been very small. In these Cases their Allegiance continues, and must be according to the Laws of England; and 'twas argued, that ex consequenti the Protection and Rule of them ought to be by the same Laws, for they are Mutual and Reciprocal, unum trahit alterum; and that Law, which is the Rule of the one, should be the Rule of the other; besides, 'tis the Inhabitants, not the Country, that are capable of Laws, and those are English, and so declared and allowed to be; and consequently there's no Reason why the English Laws should [33] not follow the Persons of Englishmen, especially while they are under the English Government, and since the Great Seal goes thither. And further, a Writ of Error lies here upon any of their ultimate Judgments; so says Vaughan 402. and 21 Hen. 7. 3. that it doth so to all Subordinate Dominions; and tho' the Distance of the Place prevents the common Use of such Writ, yet by his Opinion it clearly lies; and he reckons the Plantations Part of those Subordinate
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