What's the Big Deal About English Common Law?

Great Debates
41

The proclamation establishing the Swan River Colony (which became Western Australia) in 1829 did include a provision to the effect that “the laws of the United Kingdom in so far as the are applicable to the circumstances of the case do therein immediately prevail and become security for the rights, privileges and immunities of all His Majesty’s subjects found or residing in such territory”, so there was an explicit extension of UK law (understood at the time to mean, in effect, English law) to the new colony.

So, although it wasn’t by statute, there was an instrument explicitly applying English law to the new colony. I don’t know whether this is unusual or even unique or whether the establishment of other colonies involved an explicit extension of English law, if not by way of statutory adoption by the colonial authorities then by some instrument, possibly an exercise of the prerogative, by the imperial authorities.

42

Actually Canada does have such a clause. Section 129 of the Constitution Act, 1867:

Continuance of existing Laws, Courts, Officers, etc.

129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.

The aforementioned provision from the Constitution Act, 1867 doesn’t mention the common law by name, but we know that the common law was already in place in those provinces (though Canada West/Lower Canada used Parisian customary law for civil law and in 1866 adopted a Civil Code similar to the French one to replace the former). British statutes are mentioned as well, and in fact excluded from being repealed or altered by the Canadian parliament (though this provision was rendered invalid by the Statute of Westminster, 1931). The common law would have been received into the union by those provinces by virtue of the phrase “all Laws in force in Canada**, Nova Scotia, or New Brunswick” .

** In this instance, “Canada” doesn’t mean the new union (though it does mean that in the reference lower down to the Parliament of Canada), but rather the Province of Canada consisting of the formerly separate Provinces of Upper and Lower Canada, now principally called Canada East and Canada West and severed by this same Act to become Ontario and Quebec respectively.

My personal opinion of the common law system is that, while it does have the added complexity of having to research precedents, is an essentially sound system, The whole precedent thing has one advantage, namely that older rules can be re-interpreted by courts as society becomes more progressive. Also, jurisdictions using the common law system now have extensive statute law as well, and statutory provisions that conflict with any rule of common law automatically repeal that rule of common law. Moreover, many jurisdictions have codified some rules from the common law into their statute law. For example, the California Civil Code (not a “civil code” in the continental European tradition of the French, Louisiana, Puerto Rico or Quebec Civil Code but rather one of the 29 codes that generally consolidate California’s statute law by subject) has many rules that were taken directly from the common law. So does (as far as I can tell) the Family Code, which was separated from the Civil Code in 1994. Of course, even statute law is subject to the rule of precedent in that courts render interpretations of some of them.

On a note related to the last point above, even in France, for example, judicature (IE the body of court decisions) is used by judges to interpret the law. It may not be binding precedent, but it certainly is persuasive (i.e. likely to be used and followed in future court decisions).

43

No, that is the continuation and allocation clause. It isn’t the source of English common law or statutes in force in Canada.

What I was referring to is the original foundation of the common law and English statute law when the colonies were set up in the 18th century. That was under the common law principle of the reception of English law.

Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland all received the common law from the moment they came under English control, in the 18th century. They also received as part of their own statute law those English statutes which were of general application. No statute or proclamation was needed for those four colonies to receive the common law or the applicable English law. They were considered “settled” colonies for the purpose of reception.

Quebec and Ontario were different. They were consider “conquered colonies”, and therefore English law did not automatically apply to them.

Quebec had civil law prior to the Conquest. In the Royal Proclamation of 1763, the British changed that and said that English law would henceforth apply. That proved unworkable, and in 1774, the British Parliament provided that French civil law would apply in private law matters (contract, property, delits, prescription, etc), but English criminal law and public law would also apply. Thus, Quebec’s allocation of law is based on that statute, not the principle of reception.

What is now Ontario was originally part of the old French Province of Quebec, so it too had that mixture of civil and common law. In 1791, when the Province of Upper Canada was set up, the very first act of the provincial parliament was to establish that the common law would apply for all purposes.

The purpose of s. 129 of the Constitution Act, 1867 was not to bring English law into force. Rather, it continued all existing laws in the four provinces, whether common law, English or British statutes, or statutes passed by the provincial legislatures prior to 1867. Those laws were not affected by the passage of the 1867 Act. It was a “nothing changed here” provision, not one that brought English law into force.

Section 129 also allocated jurisdiction to alter those pre-Confederation laws according to the new division of powers. So for example, criminal laws which had been passed by Nova Scotia, New Brunswick and the old Province of Canada stayed in effect, but now could only be amended or repealed by the federal government.

Section 129 also confirmed that the provinces and Canada could not amend British statutes of a constitutional nature which pre-existed 1867, but that provision had to be read consistently with the Colonial Laws Validity Act, which provided that colonies could amend English statutes of general application which were in force in the colony. Section 129 wasn’t a complete bar on changing English laws in force in Canada after 1867.

44

Ah, OK. I stand corrected. I conflated the two purposes when reading the Ghana law above.

45

Apologies, I was simplifying a bit with the Ghana example. The actual transition did take place earlier, in 1957. The 1992 constition is indeed rather a continuation of the state of affairs. If you want to see a more precise example of how the transition at independence was achieved take for example Zambia, the English Law (Extent of Application) Act.:

  1. Extent of application of English law
    Subject to the provisions of the Constitution and to any other written law—

    (a) the common law;

    (b) the doctrines of equity;

    (c) the statutes which were in force in England on 17th August, 1911, being the commencement of the Northern Rhodesia Order in Council 1911; and

    (d) any statutes of a later date than that mentioned in paragraph (c) in force in England, now applied to the Republic, or which shall apply to the Republic by an Act of Parliament, or otherwise;

shall be in force in the Republic.

For other countries there are similar provisions, but the older constitutions and declarations of independence are not always easily found on the Internet.