140
Souter, J., dissenting
(Alien and Sedition Laws).36 In particular, although there is little evidence regarding the immunity enjoyed by the various colonial governments prior to the Revolution, the profound differences as to the source of colonial authority between chartered colonies, royal colonies, and so on seems unlikely, wholly apart from other differences in circumstance, to have given rise to a uniform body of immunity law. There was not, then, any unified "Common Law" in America that the Federal Constitution could adopt, Jay I, at 1056; Stoebuck, Reception of English Common Law in the American Colonies, 10 Wm. & Mary L. Rev. 393, 401 (1968) ("The assumption that colonial law was essentially the same in all colonies is wholly without foundation"), and, in particular, probably no common principle of sovereign immunity, cf. Alien and Sedition Laws 376. The Framers may, as Madison, Hamilton, and Marshall argued, have contemplated that federal courts would respect state immunity law in diversity cases, but the generalized principle of immunity that today's majority would graft onto the Constitution itself may well never have developed with any common clarity and, in any event, has not been shown to have existed.
Finally, the Framers' aversion to a general federal reception of the common law is evident from the Federalists' re-36 See also Justice Jay's Charge to the Grand Jury for the District of New York (Apr. 4, 1790) (observing that at the time the Nation was formed, "[o]ur jurisprudence varied in almost every State, and was accommodated to local, not general convenience—to partial, not national policy") (quoted in Jay, Origins of Federal Common Law: Part One, 133 U. Pa. L. Rev. 1003, 1056, n. 261 (1985) (Jay I)); United States v. Worrall, 28 F. Cas. 774, 779 (No. 16,766) (CC Pa. 1798) (Chase, J.) (noting that "[t]he common law . . . of one state, is not the common law of another"); 8 Annals of Cong. 2137 (1798) (statement of Rep. Albert Gallatin) (asserting that there could be no national common law because "[t]he common law of Great Britain received in each colony, had in every one received modifications arising from their situation . . . and now each State had a common law, in its general principles the same, but in many particulars differing from each other").
Page: Index Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 NextLast modified: October 4, 2007