Cite as: 517 U. S. 44 (1996)
Souter, J., dissenting
mon law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation." Van Ness v. Pacard, 2 Pet. 137, 144 (1829). In 1800, John Marshall had expressed the similar view that "our ancestors brought with them the laws of England, both statute & common law as existing at the settlement of each colony, so far as they were applicable to our situation." Letter from John Marshall to St. George Tucker, Nov. 27, 1800, reprinted in Jay II, App. A, at 1326, 1327. Accordingly, in the period following independence, "[l]egislatures and courts and doctrinal writers had to test the common law at every point with respect to its applicability to America." Pound, supra, at 20; see also Jones 103 (observing that "suitab[ility] to local institutions and conditions" was "incomparably the most important" principle of reception in the new States).
2
While the States had limited their reception of English common law to principles appropriate to American conditions, the 1787 draft Constitution contained no provision for adopting the common law at all. This omission stood in sharp contrast to the state constitutions then extant, virtually all of which contained explicit provisions dealing with common-law reception. See n. 55, infra. Since the experience in the States set the stage for thinking at the national level, see generally G. Wood, Creation of the American Republic, 1776-1787, p. 467 (1969) (Wood), this failure to address the notion of common-law reception could not have been inadvertent. Instead, the Framers chose to recognize only particular common-law concepts, such as the writ of ha-sooner or later to be repeated in practically every American jurisdiction, that only those principles of the common law were received which were applicable to the local situation").
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