The English common law was introduced into the Commonwealth Caribbean by two methods:
(a) With respect to settled colonies, the colonists carried with them only so much of the English law as was applicable to their own situation and the condition of the infant colony. The date of the establishment of the colony was the date of reception.
(b) For conquered territories, the colonists retained the existing legal system only in so far as it was not repugnant to natural justice. The existing system was retained until such time as other arrangements could be made for English law to be intro-duced.22 If we consider St Lucia, for example, it was this arrangement of conveni-ence which made it possible for the hybrid legal system to emerge. In such cases, the date of reception is the date which the Crown directed that English law come into operation.
These are the orthodox English rules on the reception of law. In practice, the distinc-tion between conquered and settled territories is less important, as most countries have introduced legislation defining the date and scope of the reception of the common law. Still, as we will see below, this is not without its own difficulty.
Two types of English law were imposed on the Caribbean. They were the English common law and English statute law. This imposition of English common law was achieved via two main methods:
(a) The use of the incorporation clause – this is where the legislation of a territory makes specific provision that the common law of England, existing at a particular date, shall be deemed to be in force in the territory.
(b) By way of proclamation: Dominica, St Vincent and Jamaica are examples of reception by proclamation as evidenced by the 1763 Proclamation:
All person inhabiting . . . in our colonies may confide in our royal prosecution for the enjoyment of the benefits of the laws of our realm of England . . .23
The existence of existing law clauses or saving law clauses in some Constitutions may also be viewed as a mechanism under the reception or imposition doctrine. This, however, is discussed in a following chapter on the Constitution.
The reception of English law was, however, subject to statutory modification, that is, that a territory may enact legislation which abrogates the common law, and the further requirement that all law received must be suited to the circumstances or needs of the colony. The latter rule is discussed further below.
21 See Chapter 4 (‘The Hybrid Legal Systems of St Lucia and Guyana’). See, also, Anthony, KD,
‘The reception of the common law by civil law systems in the Commonwealth Caribbean’, in Doucet, M and Vanderlinden, J (eds), La Réception des Systèmes Juridiques, 1994, Brussels:
Bruylant, p 15.
22 Op cit, Tucker, fn 13, pp 106–07. See Campbell v Hall (1770) 1 Comp 204, discussed further below, p 78, which affirmed this latter rule.
23 Revised Laws of Dominica 1961.
Two prerequisites must be present before English law can be said to have been received. First, the territory must have been brought within the Crown’s dominion.
Secondly, the settlement must have been established, that is, Crown authorisation, recognition of unauthorised settlements and annexation of inhabited areas must have been formalised.
It was also necessary to have some semblance of a legislature before one could describe a colony as established or settled. There should have been a Constitution or some authority which had the power to legislate. This is not without historical con-tradiction. For example, in the British Virgin Islands, colonists arrived in 1666 but the legislature was not set up until 1774. It is nevertheless accepted that this does not mean that the Islands were without law or legal authority during the interim period.
The better view may be that the term ‘established colony’ refers to the situation where the colony had ‘some adequate communal organisation to call for legal regulation and some form of governmental and legislative control was set up’.24
Jamaica provides a unique example, since it came into British control by force of arms which destroyed completely the previous system of government and law. It was therefore not possible for this previous system to continue until further arrangements could be made. In R v Vaughan25 and Campbell v Hall,26 the island was treated as settled and this historical fact has been accepted by the Supreme Court of Jamaica.27 Part of the problem with Jamaica was that it was one of the first colonies to be conquered. As such, the Crown was uncertain how far its Prerogative or royal power extended. The Crown did assert the right to legislate for the colony even after a grant of representa-tive institutions had been made allowing a form of self-government. Afterwards, however, the Crown conceded that its legislative power had been lost when the Representative Assembly was restored in 1680. Therefore, the common law came to Jamaica via the exercise of the Crown’s Prerogative in the proclamation of 14 Decem-ber 1661. From that time onward, the basic law and the right to a representative legislature could not be altered by the Crown and it was to be treated as a settled colony.28
The case of Rose And Others v Chung And Others29 contains an exhaustive account of the application of the reception of English law doctrine in Jamaica, some of which is reproduced here. The jurisdiction of the court was questioned as to its power to grant damages either in lieu of or in substitution for specific performance. It therefore found it necessary to consider the reception doctrine, particularly as the Chancery Amend-ment Act, enacted in 1858 in the United Kingdom, had not been enacted in Jamaica.
The court noted that Jamaica had ‘received’ English laws and statute by virtue of its colonial status until 1728 and that Section 22 of the statute 1 Geo II Cap 1 sets the limitations for the reception of English laws and statutes applicable to Jamaica prior to 1728. Further, the counterpart of this section is now contained in s 41 of the Interpretation Act, which reads:
24 Op cit, Patchett, fn 17, p 18. For this assertion, he relies on the legal historian, Roberts-Wray, K, Commonwealth Colonial Law, 1966, London: Stevens, p 151.
25 (1769) 4 Barr 2492, p 2500.
26 (1770) 1 Comp 204, p 212.
27 Jacquet v Edwards, (1867) 1 Jam SC Decisions 421.
28 For further discussion of the particular case of Jamaica, see Morrison, D, ‘The Reception of Law in Jamaica’ (1979) 2 WILJ 43.
29 (1978) 27 WIR 211.
All such laws and Statutes of England as were, prior to the commencement of 1 George II Cap 1, esteemed, introduced, used, accepted, or received, as laws in the Island shall continue to be laws in the Island save in so far as any such laws or statutes have been, or may be, repealed or amended by any Act of the Island.30
The court adopted the reasoning found in a judgment of the Full Court delivered by Henry J, in R v Commissioner of Police and Others, ex p Cephas (No 2),31 on the subject of the applicability of an English statute to Jamaica. In that case Henry J stated:
The Jamaica legislature has treated the year 1728 and the Act 1 Geo II Cap 1 as the year and the event which concluded the reception of English laws and statutes into Jamaica by virtue of its colonial status. This cut-off period was beneficial to the settlers in that it extended the application of these laws and statutes beyond the year 1655 and right up to 1728 and at the same time the 1728 Act 1 Geo II Cap 1 set certain limitations on the reception of English laws and statutes by enumerating the circumstances in which they were to be applicable to Jamaica.
The Cephas court concluded: ‘It is therefore necessary to trace cases judicially decided in Jamaica in which English statutes up to 1728 “were esteemed, used and accepted” to come to a decision as to whether a particular English statute applied to Jamaica.’
The court also stated the position with respect to judge-made law. It held that, as a colony and partial self-governing colony, Jamaica continued to be bound by the development of the law and equity by the doctrine of stare decisis, until the country became an independent nation. Consequently, to ascertain what the law was in Jamaica (apart from statute), one has to examine what the law was in England.32
On the question of equity and damages, the court noted the adoption in Jamaica of provisions similar to the Supreme Court of Judicature Act 1873 of the UK which consolidated the courts of law and equity in England.33 The relevant statutory provi-sions reproduced in the 1973 revised edition of the Judicature (Supreme Court) Act, s 48, reads:
48. With respect to the concurrent administration of law and equity in civil causes and matters in the Supreme Court the following provisions shall apply–
(a) If a plaintiff or petitioner claims . . . any equitable estate or right, or . . . relief upon any equitable ground against a deed, instrument or contract, or against a right, title or claim asserted by a defendant or respondent in such cause or matter, or to relief founded upon a legal right which before the passing of this Act could only have been given by a Court of Equity, the Court and every Judge thereof shall give him such and the same relief as ought to have been given by the Court of Chancery before the passing of this Act.
. . .
(f) Subject to the aforesaid provisions for giving effect to equitable rights and matters of equity . . . the said Court . . . shall give effect to all legal claims and demands . . .
30 Ibid, at p 218.
31 (1976) 15 JLR 3, at 8; (1976) 24 WIR 402.
32 The Chancery Procedure Amendment Act 1858, Lord Cairns’ Act (21 and 22 Vict c 27) was enacted 130 years after the cut-off period, and a similar statute was never enacted in Jamaica.
Nor does the Act fall among the enactments which by the words of the statute itself were made applicable to the colony, Jamaica, by imperial legislation, such as the Extradition Act 1870 (33 and 34 Vict c 52 and amendments), the Forcible Entry Act 1381 (5 Rict 2 Stat I c 7 and amendments to 1623), the Copyright Act 1911 etc. Rose, above, fn 29, p 218.
33 The Judicature (Supreme Court) Act, Cap 180, 1880.
existing by the common law or by any custom, or created by any statute, in the same manner as the same would have been given effect to if this Act had not been passed by any of the Courts whose jurisdiction is hereby transferred to the Supreme Court.
It was found therefore that the Act did no more than to consolidate existing jurisdictions in one Supreme Court, and to vest in the court and every judge, powers of law and equity in civil cases. No new rights were created. Rights previously existing in the courts of either law or equity were merely confirmed.34
After Jamaica’s independence, existing laws were preserved by virtue of s 4(1) of the Constitution and thus the existing regime was saved.35 As the Judicature (Supreme Court) Act did not confer any new rights, the court then went on to consider whether or not the old Court of Chancery [UK] (and hence the old Court of Chancery, Jamaica) had and exercised the power to award damages in lieu of or substitution for specific performance, before Lord Cairns’ Act or whether this was a new power extended by that Act.
The exact date of reception has sometimes produced controversy even in the courts. In the case of Barbados, for example, Patchett suggests 1628, the date of the Montgomery Patent, which was the formalisation of Crown control, as the relevant date. Before this date, from 1625, the island was controlled by a private syndicate by the Courteen brothers. Yet, in Blades v Jaggard,36 1625 was the date accepted by the court.
Similarly, in Dominica, one view holds that the relevant date of reception is 1763, by virtue of the proclamation of that date introducing English law as a matter of convenience while the colony awaited a Representative Assembly. The other date suggested is 1775, the date of the proclamation of the Constitution.37
Where the date is contentious, the effect could be that English law could be ignored to prevent the anomaly of the territory being pinned to ancient statute. This occurred in Shillingford v AG of Dominica.38 Here, the Court of Appeal of the West Indian Associated States found no evidence that English Acts were treated as in force in Dominica before 1775. Consequently, the Nullum Tempus Act 1769 was not part of the law of Dominica. Again, in Trinidad, in Desmontiles v Flood,39 even after the 1848 Ordinance which sought to repeal Spanish civil law in favour of British law, the Supreme Court found that Spanish law still endured.
34 Ibid, at p 219.
35 Section 4(1) reads: ‘All laws which are in force in Jamaica immediately before the appointed day shall (subject to amendment or repeal by the authority having power to amend or repeal any such law) continue in force on and after the day, and all laws which have been made before that day but have not previously been brought into operation may (subject as aforesaid) be brought into force, in accordance with any provision in that behalf, on or after that day, but all such laws shall, subject to the provisions of this section, be construed, in relation to any period beginning on or after the appointed day, with such adaptations and modifications as may be necessary to bring them into conformity with the provisions of this Order.’ Other Constitutions in the region have similar provisions.
36 (1961) 4 WIR 207, p 210.
37 Likewise, in St Christopher (St Kitts), the date of reception is controversial. Some suggest 1713, the date of formal acquisition, while others prefer 1623, the date of rediscovery. In contrast, in Montserrat and Antigua, the date of 1682 is accepted for both islands. See op cit, Patchett, fn 17, p 18.
38 (1968) 12 WIR 57.
39 [1893–1910] 1 T&T SCR, 162.
Reception of English statutory law
During the colonial era the UK was considered an imperial parliament which had the power to enact laws for its colonies via statute. This law was imposed in three main ways:
(a) by express extension by the UK Parliament of particular statutes to apply generally to all territories or to a named territory. These Acts usually concerned constitutional matters and the administration of the territories;
(b) incorporation by reference in the colonial legislation. This could be specific, relating to a particular Act, or general, relating to a body of law, for example, jurisdiction in probate divorce could be incorporated by the following words:
Proceedings shall be subject to this ordinance and to the rules of court exercised by the court in conformity with the law and practice from time to time in force in England;
(c) incorporation by repetition: this was the most common method. Here, a particular English statute was simply repeated verbatim and enacted by the local legislature.