The common law distinguishes between colonies that were settled (ie. controlled by occupation) and conquered/ceded (ie. control gained after a war or where it had been given to England by another government). In settled colonies the common law applied automatically to all citizens (subject to the above general rule - ie. only the English law which is relevant to the conditions in the colony). In conquered/ceded colonies, the common law only applied through the decision or action of executive/parliament, and this could specify exceptions (eg. for some colonies, the government decided the common law applied only to particu­lar persons, or in certain geographical areas).

The above paragraphs explain 'the law' according to the English, or common law, system. Obviously, most colonies were populated by peoples who had their own laws and legal system, and these laws viewed the English and their common law very differently. However, in most colonies, the English enforced their rule and law to such a degree that the common law become the paramount system. Where a colony had a legal system/laws before the English arrived, parts of that legal system sometimes continued. The general situation is the common law provided the overall structure and procedural law, but there was sometimes potential for different substantive law within that overall framework. Sometimes, of the pre-existing law, the 'private law' continued (ic. law about relations between people - marriage, inheritance, religion) however the `public law' was almost always regulated by the common law (public law here meaning the law about relations between citizen and state). This could result in a 'mixed jurisdiction' - a legal system where there is more than one type of law (eg. common, civil, indigenous, religious).

An important distinction, which must be constantly borne in mind, is the distinction between `the common law' and 'the law in common law countries'. The law in common law countries can come from three sources: the constitution (if there is one), parliamentary law (eg. statutes, regulations), and common law principles contained in previous court decisions. When a court's decision is based on this last source, the decision forms part of 'the common law' and can be of considerable importance for other common law courts. However, when the decision is based on the first two sources, it is of far less relevance to courts that do not have simi­lar constitutional or parliamentary laws.

One of the more complex aspects in understanding the common law is that there isn't one single 'common law' but different ‘common laws’ in different jurisdictions. This is because the common law is drawn from judges' decisions, and when each colony established its own legal system and courts, these court decisions would develop the common law for local conditions. For example, Australia had different conditions to England (eg. drier climate, more land, less people) and so the case law developed differently on landowners' liability for fire escaping their property. Different 'common laws' can occur even within a country. The United States of America, for example, has separate com­mon laws in each state whereas other federal nations (eg. Austra­lia) have one common law for the entire country.

The existence of different common laws is important to remem­ber when considering court decisions from another country or jurisdiction. When these decisions refer to 'the common law' it is necessary to decide whether the 'common law' of your country is the same. This will depend on various things including: the sources of law for that decision, the factual situation there considered, and comparisons with your own country's situation and the facts you now face. Also relevant is the relation between the courts of the two countries. Where a colony/country still has a right of appeal to English courts (like the Privy Council) those appeal court decisions are binding on all courts within the colony/country and other English courts' decisions have considerable weight.

Courts in common law colonies/countries would often gain their common law jurisdiction simply by reference to the English courts. For example, many of the Australian colonial courts were created by laws which granted the courts the same jurisdiction as England's superior courts.² This gave the colonial court the power to apply the common law and grant common law remedies.

1.3 Parliament, the executive, the courts
Another issue to understand in the English legal system and its many offshoots is the relationship between courts and parliament. The common law recognises parliamentary supremacy. That is: where the parliament passes a law on a subject within its power, that law must be respected and enforced by the courts. In common law countries, where the law-making powers of the national parliament are listed in a constitution (eg. USA, Canada, Burma 1947-1962), the courts will not enforce a statute that falls outside the parliament's listed powers. In common law countries without this constitutional list of powers (eg. UK, New Zealand, Israel)

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