476
Scalia, J., dissenting
Chipman 128: "If no reason can be assigned, in support of rules, or precedents, not already adopted in practice, to adopt such rules, is certainly contrary to the principles of our government." (Emphasis added.) This discretion not to adopt would not presuppose, or even support, the power of colonial courts subsequently to change the accumulated colonial common law. The absence of belief in that power is demonstrated by the following passage from 1 Horwitz 5: "Massachusetts Chief Justice Hutchison could declare in 1767 that 'laws should be established, else Judges and Juries must go according to their Reason, that is, their Will.' It was also imperative 'that the Judge should never be the Legislator: Because, then the Will of the Judge would be the Law: and this tends to a State of Slavery.' " Or, as Judge Swift put it, courts "ought never to be allowed to depart from the well known boundaries of express law, into the wide fields of discretion." 2 Swift 366.
Nor is the framing era's acceptance of common-law crimes support for the proposition that the Framers accepted an evolving common law. The acknowledgment of a new crime, not thitherto rejected by judicial decision, was not a changing of the common law, but an application of it. At the time of the framing, common-law crimes were considered unobjectionable, for " 'a law founded on the law of nature may be retrospective, because it always existed,' " 1 Horwitz 7, quoting Blackwell v. Wilkinson, Jefferson's Rep. 73, 77 (Va. 1768) (argument of then-Attorney General John Randolph). Of course, the notion of a common-law crime is utterly anathema today, which leads one to wonder why that is so. The obvious answer is that we now agree with the perceptive chief justice of Connecticut, who wrote in 1796 that common-law crimes "partak[e] of the odious nature of an ex post facto law." 2 Swift 365-366. But, as Horwitz makes clear, a widespread sharing of Swift's "preoccupation with the unfairness of administering a system of judge-made criminal law was a distinctly post-revolutionary phenome-
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