162
Souter, J., dissenting
governments did not leave reception of the common law to implication, then, neither did they receive it as law immune to legislative alteration.56
constitutions, customs and laws of this Province"); S. C. Const., Art. VII (1790), in 8 Swindler, supra, at 480 ("All laws of force in this State at the passing of this constitution shall so continue, until altered or repealed by the legislature . . ."); W. Slade, Vermont State Papers 450 (1823) (Act of June 1782) (adopting "so much of the common law of England, as is not repugnant to the constitution or to any act of the legislature of this State"); Act of May 6, 1776, Ch. V, § VI, in First Laws of the State of Virginia 37 (1982) ("the common law of England . . . shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the Legislative power of this colony").
Connecticut, which did not enact any reception statute or constitutional provision, adopted the common law by judicial decision insofar as it was appropriate for local conditions. See 1 Powell & Rohan, supra, ¶ 52, at 140-141, and n. 77; Hall, 4 Vand. L. Rev., at 800; Fitch v. Brainerd, 2 Day 163 (Conn. 1805). Maryland's position appears to have been articulated in an oath prescribed by the Assembly in 1728 for justices of the Provincial Court. The oath required that the justices act "according to the Laws, Customs, and Directions of the Acts of Assembly of this Province; and where they are silent, according to the Laws, Statutes, and reasonable Customs of England, as have been used and practiced in this Province . . . ." M. Andrews, History of Maryland 227 (1929). Finally, although Pennsylvania's reception statute did not state that the common law could be altered by legislative enactment in so many words, it may be read as assuming the primacy of legislative enactments, see 9 Statutes at Large of Pennsylvania 29-30 (Mitchell & Flanders eds. 1903) (Act of Jan. 28, 1777) (declaring prior Acts of the general assembly to still be in force, as well as "the common law and such of the statute laws of England as have heretofore been in force in the said province . . ."), and the state assembly seems to have believed it had the power to depart from common law even prior to independence. See Warren, History of the American Bar, at 103; cf. Kirk v. Dean, 2 Binn. 341, 345 (Pa. 1810) (interpreting the state constitution as permitting departures from common-law rules where local circumstances required it).
56 It bears emphasis that, in providing for statutory alteration of the common law, the new States were in no way departing from traditional understandings. It is true that the colonial charters had generally rendered colonial legislation void to the extent that it conflicted with English common law, but this principle was simply indicative of the Colonies' legal
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