Reception statute

A reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts (i.e. receives) pre-independence English common law, to the extent not explicitly rejected by the legislative body or constitution of the new nation. Reception statutes generally consider the English common law dating prior to independence, and the precedents originating from it, as the default law, because of the importance of using an extensive and predictable body of law to govern the conduct of citizens and businesses in a new state. All U.S. states have either implemented reception statutes or adopted the common law by judicial opinion (but see the special case of partial reception by Louisiana, discussed below).^[1]

Initial reception of English common law into new colonies, and adoption of common law on decolonization

In Commentaries on the Laws of England (Bk I, ch.4, pp 106–108), Sir William Blackstone described the process by which English common law followed English colonization:

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 hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force... 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.

In other words, if an 'uninhabited' or 'infidel' territory is colonized by Britain, then the English law automatically applies in this territory from the moment of colonization; however if the colonized territory has a pre-existing legal system, the native law would apply (effectively a form of indirect rule) until formally superseded by the English law, through Royal Prerogative subjected to the Westminster Parliament.

As colonies gained independence from Britain, in most cases the newly independent countries adopted English common law precedent as of the date of independence as the default law to carry forward into the new nation, to the extent not explicitly rejected by the newly freed colony's founding documents or government. In some cases, the carry-forward was simply understood, with no express provision in either the new independence constitution or legislation. In other cases, the new legislature felt it necessary to "dot i's and cross t's" by enacting an express reception statute, even if common law had been received during the colonial period. Examples of both patterns are described below.

Reception statutes in the United States

For example, following the American Revolution in 1776, one of the first legislative acts undertaken by each of the newly independent states was to adopt a "reception statute" that gave legal effect to the existing body of English common law to the extent that American legislation or the Constitution had not explicitly rejected English law.^[2] Some states enacted reception statutes as legislative statutes, while other states received the English common law through provisions of the state's constitution, and some by court decision. British traditions such as the monarchy were rejected by the U.S. Constitution, but many English common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States. Significant elements of English common law prior to 1776 still remain in effect in many jurisdictions in the United States, because they have never been rejected by American courts or legislatures.^[3]

For example, the New York Constitution of 1777^[4] provides that:

[S]uch parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.

Alexander Hamilton emphasized in the Federalist papers that this New York constitutional provision expressly made the common law subject "to such alterations and provisions as the legislature shall from time to time make concerning the same."^[5] Thus, even when reception was effected by a constitution, the common law was still subject to alteration by a legislature's statute.

One could note a certain irony: one of the first acts of many of the newly independent states was to adopt the law of the foreign sovereign from whom independence had just been gained. But this is one more demonstration of the point mentioned the article on common law (commercial economies), that the newly independent states recognized the importance of a predictable and established body of law to govern the conduct of citizens and businesses, and therefore adopted the richest available source of law.

The Northwest Ordinance, which was approved by the Congress of the Confederation in 1787, guaranteed "judicial proceedings according to the course of the common law." Nathan Dane, the primary author of the Northwest Ordinance, viewed this provision as a default mechanism in the event that federal or territorial statutes were silent about a particular matter; he wrote that if "a statute makes an offence, and is silent as to the mode of trial, it shall be by jury, according to the course of the common law."^[6] In effect, the provision operated as a reception statute, giving legal authority to the established common law in the vast territories where no states had yet been established.

Over time, as new states were formed from federal territories, these territorial reception statutes became obsolete and were re-enacted as state law. For example, a reception statute enacted by legislation in the state of Washington requires that "[t]he common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."^[7] In this way, the common law was eventually incorporated into the legal systems of every state (except Louisiana in which some areas of law were received as common law, and others adopted from French and Spanish sources, as explained in the article on Law of Louisiana).

Certain anomalies exist within certain US states due to the effective branching of the law in different directions. For example, Virginia adopted the English common law upon becoming independent, yet before England abolished trial by combat. Thus, it has been argued, the right to request trial by combat theoretically still exists in Virginia,^[8] at least as far as a form of action under which the Common Law had authorized trial by combat would be available in Virginia.

Reception in Canada

The Canadian colonies received the common law and English statutes under Blackstone's principles for the establishment of the legal system of a new colony. In five of the Canadian provinces, English law was received automatically, under the principle of a settled colony inheriting English law. In the other five provinces and the three territories, reception was governed by reception statutes. The reception of English law occurred long before Canada became fully independent, and reception statutes in Canada were not part of the decolonisation process.

When Canada achieved formal independence with the passage of the Canada Act 1982, no reception statutes were necessary for the decolonialisation process. English law had already been received in the various Canadian provinces and territories by legislation and judicial decisions over the previous two centuries.

Atlantic Provinces

In the four Atlantic provinces (Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador), the reception of English law was automatic, under the principle set out by Blackstone relating to settled colonies. British colonists were considered to have brought English common law as well as applicable English statutes with them. No reception statute was necessary. The reception date for New Brunswick is 1660; for Nova Scotia and Prince Edward Island, 1758; and for Newfoundland and Labrador, 1825.

Quebec

Quebec was settled as a French colony, and originally operated under the French civil law system, using the Coûtume de Paris. Upon the transfer of the colony to British control, the British government issued the Royal Proclamation of 1763, which imposed English common law on the colony, under the principle set out in Blackstone relating to captured colonies. However, in 1774, the British Parliament passed the Quebec Act, which restored the French civil law for matters of private law (e.g., contracts, property, successions), while keeping the English common law as the basis for public law in the colony, notably the criminal law. Subsequently, with the passage of the Civil Code of Lower Canada in 1866, Quebec's civil law became entirely statute-based, using the civil law system for matters within provincial jurisdiction. Public law in Quebec continues to have its origin in the common law, but even here civil law plays a strong role. Where federal legislation requires interpretation, judges must look to the Civil Code of Quebec.^[9]

Ontario

The territory now forming Ontario was originally part of Quebec, and thus was under the civil law. When Quebec was divided into the two provinces of Upper and Lower Canada by the Constitutional Act of 1791, the first Act passed by the Legislature of Upper Canada was to adopt the law of England for all purposes, replacing the civil law.^[10] This statute adopted both the English common law and English statute law. The foundation for the operation of the common law in Ontario traces back to that reception statute.

The North-West Territories, Manitoba, Saskatchewan and Alberta

The new Dominion of Canada acquired the territories of Rupert's Land and the North-Western Territory from the Hudson's Bay Company in 1870. These territories were considered to have been settled by British colonists, and therefore the reception of English law was automatic. However, given the long history of control by the Hudson's Bay Company, there was some uncertainty as to the date of reception. To resolve this uncertainty, various statutes were passed to set the date of reception as July 15, 1870, the date of the transfer of these two territories to Canada. The Province of Manitoba set this date for the reception of English law for matters coming within provincial jurisdiction. The Legislature of the North-West Territories passed an Ordinance adopting the same date for matters coming within territorial jurisdiction. The federal Parliament eventually enacted a provision adopting this date for all matters in the North-West Territories.^[11] That provision was carried forward in the provinces of Alberta and Saskatchewan, when they were created by the Alberta Act^[12] and the Saskatchewan Act.^[13] The same provision is the basis for the reception date of English law in the Northwest Territories, Yukon and Nunavut.

British Columbia

British Columbia was considered to be a settled colony and therefore received English law automatically, under the principle set out by Blackstone.

Reception in Hong Kong

Hong Kong was ceded (or in case of the New Territories, leased) to the United Kingdom by Qing dynasty China through a series of treaties, starting with the Treaty of Nanking in 1842. As a ceded or leased territory with its own set of laws, the Great Qing Legal Code remained in force for the local Chinese population. Until the end of the 19th century, a Chinese man convicted of murder would be executed by decapitation, while an Englishman convicted of the same crime would be sentenced to death by hanging. It was not until 1971, nearly six decades after the fall of the Qing dynasty, that the last of the Qing Code was abolished in Hong Kong. Even then, some vestiges of it remain. For example, before the Marriage Act of 1971 was enacted a man could practice polygamy by virtue of the Qing Code. The courts still refer to the Qing Code regarding the inheritance rights of surviving concubines married before 1971 and that of their children.

When Hong Kong was handed over to People's Republic of China in 1997, Hong Kong retained the common law through a reception statute in Chapter I, Article 8 of the Hong Kong Basic Law:^[14]

The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.

Reception in other British colonies

The pattern was repeated in many other former British colonies as they gained independence from the United Kingdom. New Zealand, India, Belize, and various Caribbean and African nations have adopted English common law through reception statutes although they do not inevitably continue to copy English Common Law; later cases can often draw on decisions in other Common Law jurisdictions. The colony of New South Wales formerly received the English common law in 1828 and the other Australian colonies each received the common law of New South Wales upon separation from that colony.

The 1922 Constitution of the Irish Free State stated that pre-existing laws would remain in force except where repugnant to it,^[15] and 1937 Constitution of Ireland does likewise.^[16] Neither explicitly stated whether this meant only the statute law, or more broadly the common law and equity as well; the Supreme Court has in general taken the broader view.^[17]

See also

• Common law#Propagation...
• Doctrine of reception

References

1. Thinking like a lawyer: an introduction to legal reasoning (Westview Press, 1996), pg. 10
2. Lammi, Glenn G.; Chang, James (December 17, 2004). "Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws" (PDF). Legal Backgrounder. Washington Legal Foundation. 19 (46). ISSN 1056-3059.
3. Milestones! 200 Years of American Law: Milestones in Our Legal History. By Jethro Koller Lieberman. Published by West, 1976. Original from the University of California. Digitized Jun 11, 2008. ISBN 978-0-19-519881-2, pg. 16
4. New York Constitution of 1777 via Avalon Project at Yale Law School.
5. Alexander Hamilton, Federalist 84 (1788).
6. Nathan Dane, 6 General Abridgment and Digest of American Law §182, art. 5, 230 (Cummings, Hilliard & Co. 1823).
7. Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001).
8. http://www.businessinsider.com/trial-by-combat-in-the-united-states-2013-11
9. Quebec North Shore Paper Co. v. Canadian Pacific (1976), [1977] 2 S.C.R 1054; St-Hilaire v. Canada (Attorney General), 2001 FCA 63, [2001] 4 FC 289
10. An Act to repeal certain parts of an Act passed in the Fourteenth Year of His Majesty's Reign, intituled an Act for making more effectual Provision for the Government of the Province of Quebec in North America; and to introduce the English Law, as the Rule of Decision in all matters of controversy relative to Property and Civil Rights, S.U.C. 1792 (32 Geo. III), c. 1.
11. The North-West Territories Act, R.S.C.1885, c. 50, s. 11.
12. Alberta Act, S.C. 1905, c. 3, s. 16.
13. Saskatchewan Act, S.C. 1905, c. 42, s. 16.
14. "Chapter I, Section 8 of Hong Kong Basic Law". Basiclaw.gov.hk. 2008-03-17. Retrieved 2010-05-30.
15. "Constitution of the Irish Free State". Irish Statute Book. Article 73. Retrieved 16 July 2016.
16. "Constitution of Ireland". Irish Statute Book. Article 50.1. Retrieved 16 July 2016.
17. Keane, Ronan (2011). "The Historical Background". Equity and the Law of Trusts in the Republic of Ireland. A&C Black. pp. 22–23, sec.2.39. ISBN 9781847667021. Retrieved 16 July 2016.