The Spread of Common Law in the British Empire

The English common law — judge-made, case-by-case, anchored in the writs of the medieval Chancery and the Year Books of the late medieval courts — is, in a sense, the empire’s most durable legal export. The common-law tradition is the foundation of the legal systems of England and Wales, Ireland, Northern Ireland, Canada, Australia, New Zealand, the United States, India, Pakistan, Bangladesh, Sri Lanka, Malaysia, Singapore, Hong Kong, Ghana, Nigeria, Kenya, Uganda, Tanzania, Jamaica, Trinidad, and many smaller jurisdictions. That is a remarkable geographical reach, and it is also a remarkable historical achievement, since the common law was, in the seventeenth century, the legal system of a single island kingdom with a population of perhaps five million.

The spread of the common law was, however, neither uniform nor uncontested. The English common law encountered Roman-Dutch law in South Africa and Ceylon, French law in Lower Canada, and customary and Islamic law in India, Africa, and the Caribbean. The result was, in most of the British Empire, a hybrid system in which English common law was the doctrinal basis of the higher courts, but the lower courts and the local magistrates continued to apply indigenous, religious, or customary law. The resulting legal pluralism is one of the most striking features of the imperial legal inheritance, and it is also one of the most difficult to reform.

The Common Law in the Settler Colonies

The common law was carried to the North American colonies in the seventeenth and eighteenth centuries. The Virginia Charter of 1606, the Massachusetts Body of Liberties of 1641, the Connecticut Code of 1650, and the early colonial statutes adopted the English common law by reference, often with explicit provisions to the effect that “in all cases not provided for, the common law of England shall be in force.” The consequence, as the legal historian John P. Dawson observed in The Oracles of the Law (1968), was that the common law, in its eighteenth-century form, became the basic law of the thirteen colonies — and, after 1776, of the United States.

In the Canadian colonies, the situation was more complicated. Lower Canada retained the French civil law after the British conquest of 1763; the Quebec Act of 1774 confirmed the position. Upper Canada, Nova Scotia, and New Brunswick adopted the English common law; the reception statutes of 1792 (Upper Canada), 1777 (Nova Scotia), and 1785 (New Brunswick) declared the common law to be in force as of a particular date — typically, the date of the settlement of the colony or the date of a particular English statute. The date was, in effect, a freezing of the common law at a particular moment of its development, and it produced the distinct flavour of Canadian and Australian common law — older in some respects, and unencumbered by later English developments in others.

In Australia, the reception of the common law was the work of the new colonial legislatures. The Australian Courts Act 1828 (9 Geo. 4 c. 83) made the English common law the basic law of New South Wales and Van Diemen’s Land; the reception dates varied from colony to colony. The South Australian Act of 1834, the Victorian Constitution Act of 1855, and the Queensland Constitution Act of 1859 all made similar provisions. In New Zealand, the Constitution Act of 1852 (15 & 16 Vict. c. 72) and the New Zealand Constitution Act 1852 (Imperial) declared the English common law to be in force. The first Chief Justice of New Zealand, Sir William Martin, was a common-law judge of the English tradition; the early cases in the New Zealand Supreme Court show the common law adapting to a wholly new context — the recognition of Māori custom, the regulation of the gold rush, and the establishment of pastoral leasehold.

The Common Law in India

The English common law was introduced into India in piecemeal fashion. The Charter Act of 1726 (the first charter to set up a Mayor’s Court in Madras) introduced the English common law into the Presidency towns of Madras, Bombay, and Calcutta; the Regulating Act of 1773 set up the Supreme Court in Bengal with a charter that directed it to apply the English common law in personal and property disputes. The resulting body of Anglo-Indian law was, as the legal historian J. Duncan M. Derrett observed, a strange hybrid: a system in which the English common law was grafted onto a much older body of Hindu and Muslim personal law, with the Hindu and Muslim law generally governing family, inheritance, and religious-endowment matters, and the common law governing the rest.

The codification of the Indian common law was the work of the late nineteenth century. The Indian Penal Code (1860), drafted by Lord Macaulay, was a substantial English criminal-law code with significant departures from the English common law. The Indian Contract Act (1872), the Indian Evidence Act (1872), and the Indian Easements Act (1882) were all English-inspired codes. The result was a body of “Anglo-Indian” law that, in many respects, was distinct from the English common law — a fact that has given the Indian successor states a great deal of legal continuity with the colonial period.

The Common Law in Africa

The English common law was introduced into the African colonies in the late nineteenth century. The Cape Colony had received the Roman-Dutch law at the Dutch settlement of 1652; the British takeover of 1806 left the Roman-Dutch law in place. The English common law was gradually introduced through the appellate jurisdiction of the Privy Council and the introduction of English commercial and procedural law. The result, in South Africa, was a Roman-Dutch common law with a substantial English overlay — the system that is still the law of South Africa today.

In West Africa, the English common law was the basic law of the Crown Colony courts; in East Africa, the situation was more complicated, since the East Africa Protectorate (Kenya), the Uganda Protectorate, and the Tanganyika Territory each had distinct legal inheritances. The Indian Penal Code was applied, with modifications, in the East Africa Protectorate; the Tanganyika Territory received the German colonial code at the British takeover in 1919, and the Uganda Protectorate retained a substantial body of customary law. The result was a complex legal pluralism that, in many respects, is still the law of the successor states.

The Common Law in the Caribbean

In the Caribbean, the English common law was the law of the Crown Colony courts; the lower courts and the magistrates’ courts applied a body of customary and (in the former French and Spanish territories) French and Spanish civil law. The legal system of Trinidad and Tobago, the largest of the mixed jurisdictions, retains a substantial body of French civil law, Spanish land law, and English common law, with a final appellate layer that was, until 2009, the Judicial Committee of the Privy Council in London.

The codification of the English common law in the Caribbean was carried out in the late nineteenth and early twentieth centuries. The Jamaica Code (1867), the Trinidad and Tobago Code (1868), the Barbados Code (1868), and the British Guiana Code (1869) were all English-inspired codifications. The result was a body of West Indian common law that, in many respects, was distinct from the English common law — a fact that has given the West Indian successor states a great deal of legal continuity with the colonial period.

The Privy Council and the Common Law Tradition

The English common law was kept roughly uniform throughout the empire by the appellate jurisdiction of the Privy Council. The Judicial Committee of the Privy Council, established in 1833, was the final court of appeal for most of the British Empire. The decisions of the Privy Council, sitting as the ultimate court, were binding on the colonial courts. The result was a slow, common-law integration of the empire: the decisions of the Canadian and Australian High Courts, the Indian Federal Court, and the West Indian courts all contributed to the common-law tradition, and the Privy Council decisions were, in turn, treated as part of the corpus of the English common law.

The Privy Council’s jurisdiction has been progressively abolished. Canada abolished appeals to the Privy Council in criminal matters in 1933 and in civil matters in 1949; Australia abolished appeals in 1986 (the Australia Act); New Zealand abolished them in 2003. The residual jurisdictions — Hong Kong (until 1997), Mauritius, Trinidad, and a few smaller territories — have been the subject of a long and complicated negotiation. The result is a body of “commonwealth common law” that, in some respects, is the direct descendant of the common law as it was understood in the 1830s, and in other respects is a quite different thing.

The Common Law in the Modern World

The contemporary world of the common law is, in some respects, the most distinctive legacy of the British Empire. The common-law system is, in many former colonies, the framework of a substantial body of jurisprudence. The Indian Supreme Court, the Singapore Court of Appeal, the Hong Kong Court of Final Appeal (which retained the common-law tradition after the 1997 handover), the South African Constitutional Court, and the Caribbean Court of Justice are all common-law courts; their judgments are, in the main, written in the English common-law tradition, with extensive citation to earlier common-law authorities.

The common-law inheritance is, however, not without its critics. The South African legal scholar John Dugard has argued that the common-law tradition is, in the South African context, a Trojan horse for colonial values. The Indian legal scholar Upendra Baxi has made a similar argument for India. The English common law, in this reading, was the law of a particular metropolitan class, and its postcolonial inheritance has not been — and cannot be — a clean transfer. The present generation of common-law scholars is, predictably, still arguing about the question.

Historiographical Note

The historiography of the common law in the empire has been transformed, since the 1960s, by the work of John P. Dawson, the Canadian legal historian George W. Keeton, and the Australian legal historian Alex C. Castles. The most influential recent study is A. C. Twining’s The Great Juristic Bazaar (2015), which collects the papers of a generation of common-law scholars. The more recent literature has, on the whole, treated the common law as a working legal tradition rather than a colonial inheritance. The unresolved question in the field is whether the common law is best understood as a body of doctrine (the older view) or as a tradition of legal reasoning (the newer view); the answer, predictably, depends on whether the scholar is also a practising lawyer.

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