6 THE ABSENT AMERICAN COMMON LAW
OF FELONY MURDER

Contrary to what lawyers are generally taught, English courts did not impose felony murder liability before the American Revolution. Yet influential treatises did present felony murder liability as part of the common law. This raises an important question: did early American courts receive and apply a mythical common law felony murder rule, by mistake?

There is little evidence that American courts did so. Colonial American criminal law was distinct from English law. Some of the newly independent states received doctrines of English law selectively, while others continued preexisting law in force. Moreover, Americans seemed to prefer legislative to judicial definition of crimes. By and large, American felony murder laws were enacted by American legislatures, not received or discovered by courts applying any form of common law.


HOMICIDE IN THE COURSE OF CRIME IN COLONIAL AMERICA

Had the English common law developed a felony murder rule in the eighteenth century, such a rule would not have been automatically applicable in the colonies. Some colonies were settled in the early seventeenth century by religious dissenters eager to legislate for themselves. As Gerhard Mueller argued, “[I]t is rather difficult to accept the frequently held notion that the English common law of crimes was transplanted to, and continued an uninterrupted existence in, America.”1 Indeed, the authority of the English common law in colonial America depended on discretionary local reception. Coke’s 1608 decision in Calvin’s Case2 held that English law, whether customary or statutory, did not automatically extend to conquered territories. While territories conquered from other Christian sovereigns retained their foreign law, territories conquered from infidels were to be governed by natural equity until the Crown legislated for them. Late in the seventeenth century, Chief Justice Holt held that English settlers took English law with them to uninhabited territory, but not to conquered

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