"The common law of England is not the common law of these states."
( Debate in Virginia Ratifying Convention, 19 June 1788)
For my own part, I never heard it denied that such a power must be vested in the government. Our complaint is, that it is not sufficiently guarded, and that it requires much more solemnity and caution than are delineated in that system. It is more guarded in England. ...Though the king can make treaties, yet he cannot make a treaty contrary to the constitution of his country. Where did their constitution originate? It is founded on a number of maxims, which, by long time, are rendered sacred and inviolable. Where are there such maxims in the American Constitution? In that country, which we formerly called our mother country, they have had, for many centuries, certain fundamental maxims, which have secured their persons and properties, and prevented a dismemberment of their country. The common law, sir, has prevented the power of the crown from destroying the immunities of the people. We are placed in a still better condition--in a more favorable situation than perhaps any people ever were before. We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire.It is clear from the context that George Mason is concerned about Article 2, and that not having English Common Law could mean individual states or groups of states make separate treaties, and that the United States could fall apart. However, happily for Mr. Mason, the courts have consistently turned back to English Common Law when deciding cases.