Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
as well, since the town's violation of the Act was negligence that facilitated the escape. This perhaps partakes more of a new right of action implied from legislation than of any common-law rule. But to the extent it involved the common law, it assuredly did not change the prior rule: A town not in violation of the statute would continue to be immune. Milborn's Case simply held that the rule would not be extended to towns that wrongfully failed to close their gates— which involves no overruling, but nothing more than normal, case-by-case common-law adjudication.
It is true that framing-era judges in this country considered themselves authorized to reject English common-law precedent they found "barbarous" and "ignorant," see 1 Z. Swift, A System of the Laws of the State of Connecticut 46 (1795) (hereinafter Swift); N. Chipman, A Dissertation on the Act Adopting the Common and Statute Laws of England, in Reports and Dissertations 117, 128 (1793) (hereinafter Chipman). That, however, was not an assertion of judges' power to change the common law. For, as Blackstone wrote, the common law was a law for England, and did not automatically transfer to the American Colonies; rather, it had to be adopted. See 1 Blackstone *107-*108 (observing that "the common law of England, as such, has no allowance or authority" in "[o]ur American plantations"); see also 1 Swift 46 ("The English common law is not in itself binding in this state"); id., at 44-45 ("The English common law has never been considered to be more obligatory here, than the Roman law has been in England"). In short, the colonial courts felt themselves perfectly free to pick and choose which parts of the English common law they would adopt.3 As stated by
3 In fact, however, "most of the basic departures [from English common law] were accomplished not by judicial decision but by local statute, so that by the time of the American Revolution one hears less and less about the unsuitability of common law principles to the American environment." 1 M. Horwitz, Transformation of American Law 1780-1860, p. 5 (1977) (hereinafter Horwitz).
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