A reception statute is a statutory law in a former British colony enacting (i.e. retaining) pre-independence English 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.
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Summation
Under the doctrine of reception, if a 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has a pre-existing legal system, the native law would apply (effectively a form of indirect rule) until formally superseded by the English law, through Royal Prerogative subjected to the Westminster Parliament. However if there is no prior legal system, presumably because the territory was uninhabited before British colonization, then the English law, considered the "birthright of every subject" of Britain,[1] would automatically apply in the colony.
The reception statutes in the former British colonies can be seen as an extension of the doctrine of reception, in the sense that the former colonial subjects of the British Empire inherit their "birthright" of the English law upon independence.
United States
Following the American Revolution in 1776, many newly independent states adopted the British body of common law to the extent that American legislation or the Constitution had not explicitly rejected points of British law.[2] The common law was generally adopted by legislatures, constitutions or courts. British traditions such as the monarchy were rejected by the U.S. Constitution, but many British common law traditions such as habeas corpus, jury trials, and various other civil liberties were adopted in the United States. Much British common law prior to 1776 still remains in effect in many jurisdictions in the United States unless later overturned 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 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.
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 (which inherited a civil law system from its French colonizers before the Louisiana Purchase of 1803, adopting a code similar to but not directly based on the Napoleonic Code of 1804).
Other former British colonies
Upon gaining independence from the United Kingdom, other former British colonies, such as the Republic of Ireland, Canada, Australia, New Zealand, India, Belize, and various Caribbean and African nations also adopted English common law through reception statutes. Upon its return to China, Hong Kong likewise retained the common law, as per Article 8 of the Basic Law of Hong Kong of 1990.
See also
- Common_law#Propagation_of_the_common_law_to_the_colonies_and_Commonwealth_by_Reception_Statutes(An elaborated discussion of "Reception statutes" in the context of the development of the common law)
- Doctrine of reception
References
- ^ Sir William Blackstone, Commentaries on the Laws of England, Bk I, ch.4, pp 106-108.
- ^ Glenn Lammi and James Chang, "Michigan High Court Ruling Offers Positive Guidance on Challenges to Tort Reform Laws" (December 17, 2004).
- ^ 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 0195198816, 9780195198812, pg. 16[1]
- ^ New York Constitution of 1777 via Avalon Project at Yale Law School.
- ^ Alexander Hamilton, Federalist 84 (1788).
- ^ Nathan Dane, 6 General Abridgment and Digest of American Law §182, art. 5, 230 (Cummings, Hilliard & Co. 1823).
- ^ Washington Legal Foundation v. Legal Foundation of Washington, 271 F.3d 835 (9th Cir. 2001).
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