Wrong, wrong, and wrong.
Frankly, anybody who denies the central place of English common law in colonial, and then American, jurisprudence doesn’t deserve a place at the table, because they haven’t done a lick of real research.
Sadly, we’re seeing a lot more of this “Founders hated English common law!!11!!eleventy11!1!” nonsense ever since the Cruzers came to the conclusion that they could use it to rescue the eligibility of their most favouritest presidential candidate evah.
States formerly were colonies, their colonial governments continued as state governments. The states joined together and formed a federal government. Unlike the governments of the states this federal government was not a continuation of an existing government, it was a new government founded on new principles.
The jurisidiction of federal courts is defined by the U.S. Const. art. VI, cl. 2. That written law does not grant to the federal judiciary the authority to incorporate other systems of laws of its own chosing, does not incorporate the common law of England, nor the law or constitution of the several states.
Jefferson letter to Edmund Randolph, August 18, 1799
Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt.
Madison letter to Jefferson, Jan 18, 1800
Madison states that admitting the common law as legal federal law of the United States “would confer on the judicial department a discretion little short of a legislative power” since federal courts would “decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States” and thus would “erect them [judges] into legislators”
Instructions To Virginia Senators, January 11, 1800.
The House proceeded to consider the instructions from the General Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY NICHOLAS, senators from the state of Virginia, in the Congress of the United States. The instructions are as follows:
The General Assembly of the commonwealth of Virginia, though it entertains no doubt of your punctual performance of your duty, or of your faithful adherence to the great principles of constitutional law, and national policy, deems it incumbent on it to communicate its opinions, formed after the most mature deliberation, on certain subjects essentially connected, as it solemnly believes, with the dearest rights, and most important interests of the people.
...The General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.
...Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts —
To oppose the passing of any law, founded on, or recognising the, principle lately advanced, ‘that the common law of England is in force under the government of the United States,’ excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; .... and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated.”
There you have it - “Our dearest rights and our most important interests are threatened by the idea that the common law of England is in force under the government of the United States.
This audacious, barefaced and sweeping pretension to a system of law for the United States, a system not adopted by the legislature, a system beyond judicial power to adopt, would make judges into legislators since they would decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.”
I NEVER denied that English common law had a place, even a central place, in the lives of the colonialists and in the fledgling states as well. After all, it had been the basis of their jurisprudence since the very beginning. You are mischaracterizing my position if you mean to imply that I do not or did not recognize this fact.
But, you are very, very wrong if you think that it was the Framers intention to adopt English Common law as the basis for the Constitutional framework of the new federal government. I could regale you with evidentiary quotations till late in the evening hours, but there is really no need for me to try to convince you. This is a friendly forum, despite your gratuitous insults.