Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
Understandably, even the trend toward acceptance of the common law that had developed in the late colonial period was imperiled by the Revolution and the ultimate break between the Colonies and the old country. Dean Pound has observed that, "[f]or a generation after the Revolution, . . . political conditions gave rise to a general distrust of English law. . . . The books are full of illustrations of the hostility toward English law simply because it was English which prevailed at the end of the eighteenth and in the earlier years of the nineteenth century." R. Pound, The Formative Era of American Law 7 (1938); see also C. Warren, A History of the American Bar 224-225 (1911) (noting a "prejudice against the system of English Common Law" in the years following the Revolution). James Monroe went so far as to write in 1802 that " 'the application of the principles of the English common law to our constitution' " should be considered " 'good cause for impeachment.' " Letter from James Monroe to John Breckenridge, Jan. 15, 1802 (quoted in 3 A. Beveridge, The Life of John Marshall: Conflict and Construction 1800-1815, p. 59 (1919)).32 Nor was anti-English senti-32 American hostility to things English was so pronounced for a time that Pennsylvania, New Jersey, and Kentucky proscribed by statute the citation of English decisions in their courts, and the New Hampshire courts promulgated a rule of court to the same effect. See Hall, 4 Vand. L. Rev., at 806; Warren, supra, at 227. This hostility may appear somewhat paradoxical in view of the colonists' frequent insistence during the revolutionary crisis that they were entitled to common-law rights. See, e. g., First Continental Congress Declaration and Resolves (1774), in Documents Illustrative of the Formation of the Union of the American States, H. R. Doc. No. 398, 69th Cong., 1st Sess., 1, 3 (C. Tansill ed. 1927) ("That the respective colonies are entitled to the common law of England"). In this context, however, the colonists were referring "not to the corpus of English case-law doctrine but to such profoundly valued common law procedures as trial by jury and the subjection of governmental power to what John Locke had called the 'standing laws,' " such as Magna Carta, the Petition of Right, the Bill of Rights of 1689, and the Act of Settlement of 1701. Jones 110; see also Jay, Origins of Federal Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1256 (1985) (Jay II) (noting that "Antifederalists
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