Doctrine of reception
Encyclopedia
In common law
, the doctrine of reception (properly, reception of the common law of England in a colony) refers to the process in which the English law
becomes applicable to a British Crown Colony
, protectorate
, or protected state.
In Commentaries on the Laws of England
(Bk I, ch.4, pp 106-108), Sir William Blackstone
described the doctrine as follows:
(Note: the 'infidel country' reference here was mainly intended to prohibit customs considered barbaric by the British, such as cannibalism
, once a territory was colonized, in an age when communications between the British government and her far-flung colonies could take months on end.)
In other words, if an 'uninhabited' territory is colonised by Britain, then the English law automatically applies in this territory from the moment of colonisation; however if the colonised 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) until formally superseded by the English law, through Royal Prerogative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.
provides an illustration of this point: after the colonization by the British Empire in 1841, the Great Qing Legal Code
remained in force for the local Chinese population. Until the end of the 19th Century, Chinese offenders were still executed by decapitation
, whereas the British would be put to death by hanging
. Even deep into the 20th Century and well after the fall of the Qing dynasty in China, Chinese men in Hong Kong could still practice polygamy
by virtue of the Qing Code -- a situation that was ended only with the passing of the Marriage Act of 1971.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, the doctrine of reception (properly, reception of the common law of England in a colony) refers to the process in which the English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
becomes applicable to a British Crown Colony
Crown colony
A Crown colony, also known in the 17th century as royal colony, was a type of colonial administration of the English and later British Empire....
, protectorate
Protectorate
In history, the term protectorate has two different meanings. In its earliest inception, which has been adopted by modern international law, it is an autonomous territory that is protected diplomatically or militarily against third parties by a stronger state or entity...
, or protected state.
In Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
(Bk I, ch.4, pp 106-108), Sir William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
described the doctrine as follows:
Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivatedTerra nulliusTerra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquestConquest (military)Conquest is the act of military subjugation of an enemy by force of arms. One example is the Norman conquest of England, which provided the subjugation of the Kingdom of England and the acquisition of the English crown by William the Conqueror in 1066...
, or ceded to us by treatiesTreatyA treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
. 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.
(Note: the 'infidel country' reference here was mainly intended to prohibit customs considered barbaric by the British, such as cannibalism
Cannibalism
Cannibalism is the act or practice of humans eating the flesh of other human beings. It is also called anthropophagy...
, once a territory was colonized, in an age when communications between the British government and her far-flung colonies could take months on end.)
In other words, if an 'uninhabited' territory is colonised by Britain, then the English law automatically applies in this territory from the moment of colonisation; however if the colonised territory has a pre-existing legal system, the native law would apply (effectively a form of indirect rule
Indirect rule
Indirect rule was a system of government that was developed in certain British colonial dependencies...
) until formally superseded by the English law, through Royal Prerogative
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
subjected to the Westminster Parliament.
Hong Kong
In practice, it could take years or even decades for the native law in a colony to be gradually superseded by the English law. The legal history of Hong KongHong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
provides an illustration of this point: after the colonization by the British Empire in 1841, the Great Qing Legal Code
Great Qing Legal Code
The Great Qing Legal Code or Qing Code was the legal code of Qing dynasty . The code was based on the Ming legal system, which was kept largely intact...
remained in force for the local Chinese population. Until the end of the 19th Century, Chinese offenders were still executed by decapitation
Decapitation
Decapitation is the separation of the head from the body. Beheading typically refers to the act of intentional decapitation, e.g., as a means of murder or execution; it may be accomplished, for example, with an axe, sword, knife, wire, or by other more sophisticated means such as a guillotine...
, whereas the British would be put to death by hanging
Hanging
Hanging is the lethal suspension of a person by a ligature. The Oxford English Dictionary states that hanging in this sense is "specifically to put to death by suspension by the neck", though it formerly also referred to crucifixion and death by impalement in which the body would remain...
. Even deep into the 20th Century and well after the fall of the Qing dynasty in China, Chinese men in Hong Kong could still practice polygamy
Polygamy
Polygamy is a marriage which includes more than two partners...
by virtue of the Qing Code -- a situation that was ended only with the passing of the Marriage Act of 1971.
See also
- Reception Statutes (An elaborated discussion of "Reception statutes" in the context of the development of the common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
) - Reception statuteReception statuteA reception statute is a statutory law adopted as a former British colony becomes independent, by which the new nation adopts pre-independence English law, to the extent not explicitly rejected by the legislative body or constitution of the new nation...
in former British colonies - Terra nulliusTerra nulliusTerra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...