Common Law

What about Story:

“The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.”

What about Kent:

“The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions.”

How about Cooley:

“When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day.”

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Ballantine http://jonathanturley.org/2011/10/23/holdings-dicta-and-stare-decisis/#comment-292330

“There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Here are some more authorities on the common law if you are interested:

“The constitution of New York, of 1777, declared that such parts of the common law of England, and of the statute law of England and Great Britain, as, together with the acts of the colonial legislature, formed the law of the colony on the 19th of April, 1775, should continue to be the law of .the state, subject, &c. So the common law and statute law of England were referred to in Missouri by the statute of 14th January, 1816, as part of the known and existing law of the territory, so far as the same was consistent with the law of the territory, and which, in a modified degree, was the Spanish law. The common and statute law of England, prior to the fourth year of James I., and of a general nature, were adopted by the convention of Virginia, in 1776, and in 1795 and 1805, by the government of Ohio ; and such is the substance of the statute law of Arkansas. 2 Ark. 206. But the Ohio statute was repealed in 1806. In the Revised Statutes of Illinois, published in 1829, it was declared that the common law of England, and the English statutes of a general nature made in aid of it, prior to the fourth year of James I., with the exception of those concerning usury, were to be rules of decision until repealed. In 1818, the common law was adopted by statute in the State of Indiana, and in 1835, in Missouri, under the same limitations ; and it is understood that the common law and the statute law of England, down to the year 1776, and applicable to their constitution and circumstances, are the law in the states of Mississippi and Georgia. In the latter state the same was declared to be in force by the statute of February 25, 1784. So the common law of England and the statute law of England, prior to 1760, were adopted by statute in Vermont, so far as they were not repugnant to the constitution or statute law of the state. James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on Americican Law Vol

“The whole structure of our present jurisprudence stands upon the original foundations of the common law.” Justice Joseph Story, Commentaries on the constitution of the United States, pg 65 (1833)

“The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed “the common law,” a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect.” Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435 (1793).

“The common law of England, so far as it was applicable to our circumstances, was brought over by our ancestors, upon their emigration to this country. The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions. James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894).

“By the common law of England, which is in force in this country, and which may be assumed as also the law of all the European states, persons within the jurisdiction of the government, or limits of the territory, are either natives, or aliens. Natives are those born within the national jurisdiction; aliens are born without that jurisdiction. The exception to this almost universal rule, are the foreign-born children of ambassadors, who are assumed to carry with them the jurisdiction of the nation which they represent. As a general principle of the English and American law, all native-born, free persons, of whatever age, sex, and parentage, are citizens.” John Norton Pomeroy, Introduction to Municipal Law, pg. 419 (1865).

“When, therefore, they emerged from the colonial condition into that of independence, the laws which governed them consisted, first, of the common law of England, so far as they had tacitly adopted it as suited to their condition; second, of the statutes of England, or of Great Britain, amendatory of the common law, which they had in like manner adopted; and, third, of the colonial statutes. The first and second constituted the American common law, and by this in great part are rights adjudged and wrongs redressed in the American States to this day.” Thomas McIntyre Cooley, Victor Hugo Lane, A treatise on the constitutional limitations which rest upon the legislative … pg. 53-54 (1903)

JUSTICE SCALIA: I wouldn’t — I don’t use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase “the right to be confronted with witnesses against him” — what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn’t so for every provision of the Constitution. The one you mentioned — what does sovereignty consist of? — that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears. So that’s why I would use English law — not at all because I think we are still very much aligned legally, socially, philosophically with England. That’s not the reason. Cass Sunstein, A Constitution of many minds: why the founding document doesn’t mean what it meant before, pg. 200-01 (2009)

“It is apparent from all this that the traditional English understanding of executive power, or, to be more precise, royal prerogatives, was fairly well known to the founding generation, since they appear repeatedly in the text of the Constitution in formulations very similar to those found in Blackstone.” Justice Antonin Scalia, Originalism, the Lessor Evil, 57 U. Cin. L. Rev. 849 (1989).

“The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.”
Ex Parte Grossman, 267 U.S. 76, 108-09 (1925).