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Abstract

From the fledgling days of statehood, and throughout the nineteenth century, attorneys and judges frequently invoked the constitutional reception clause in defining Maine law. The clause served the valuable purpose of providing the new state with a transitional system of law. In the words of Prentiss Mellen, first Chief Justice of Maine's Supreme Judicial Court, reception "was evidently designed to prevent confusion consequent upon a suspension of law, and the injury which would thereby result to the community and individuals." After the nineteenth century, as Maine developed an indigenous body of decisional and statutory law, the reception provision increasingly fell into disuse. The reception clause has lain relatively quiescent through much of the present century, the Maine Law Court having refrained from employing the incorporation doctrine even when clearly germane to the resolution of a case. In 1975, however, the Law Court poured new vitality into the reception clause in Hilton v. State, some of whose language can be interpreted to mean that English common law rules, once incorporated into Maine law, can be changed only by legislative action, and that courts are powerless to modify or overrule them. Such an interpretation of the reception clause would run contrary to established principles of jurisprudence, to historical fact, and to past decisions of the Maine Law Court. The reception clause can and should be treated in a more flexible and enlightened manner, for the English common law, incorporated or not, is of value only insofar as it retains its adaptability to the changing needs of a dynamic, modem society.

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