The common law in the United States consists of the common law of England as it existed at the time the colonists emigrated and settled in America, in so far as that law was applicable to their new conditions and surroundings, and except in so far as it has been abolished by statute. It also includes some English statutes enacted before that time, a few of such statutes enacted afterwards, but before the Revolution, and some usages adopted by the colonists.

11. The English Common Law.

The common law of England, otherwise called the "unwritten law," the lex non scripta,—is based upon the immemorial usage and general consent of the people, and not upon legislative enactment. From the earliest times, certain rules and principles have been recognized there, and applied by the courts from time to time to particular cases, as they have arisen. These rules and principles constitute the common law of England. "The authority of the maxims and rules of the common law," said Blackstone, "rests entirely upon general reception and usage, and the only method of proving that this or that maxim is a rule of the common law is by showing that it hath always been the custom to observe it."

12. The Common Law in the United States.

(a) Offenses against the States.-The common law in the United States consists, for the most part, of the common law of England, except in so far as it has been abolished by statute; but it also includes other laws. When our ancestors emigrated `from England, they brought with them the common law as it then existed, except such parts as were inapplicable to their new state and condition. This became the common or unwritten

by such incorporation, form a part of the municipal code of each state or nation which has emerged from the loose and erratic habits of savage government." State v. Lafferty, Tappan (Ohio) 113.

1 Bl. Comm. 68. See 6 Am. & Eng. Enc. Law (2d Ed.) 270, 271.

law of the colonies settled by the English, and continued to be a part of their common law when they became states. It is still the common law in the various states, except in so far as it has been abolished or superseded by statute.10 In Massachusetts

10 Com. v. Knowlton, 2 Mass. 530, Beale's Cas. 1; Com. v. Chapman, 13 Metc. (Mass.) 68. And see Com. v. York, 9 Metc. (Mass.) 93, 110; Com. v. Callaghan, 2 Va. Cas. 460, Beale's Cas. 116; Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776, Mikell's Cas. 64; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, Beale's Cas. 113; State v. Rollins, 8 N. H. 550, 559; State v. Carver, 69 N. H. 216, 39 Atl. 973; State v. Danforth, 3 Conn. 112, 114; State v. Lafferty, Tappan (Ohio) 113; Smith v. People, 25 Ill. 17, 76 Am. Dec. 780; Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128; State v. Cawood, 2 Stew. (Ala.) 360; Pierson v. State, 12 Ala. 149; Stout v. Keyes, 2 Doug. (Mich.) 184; Porter v. State, Mart. & Yerg. (Tenn.) 226; Fields v. State, 1 Yerg. (Tenn.) 156; Simpson v. State, 5 Yerg. (Tenn.) 356; State v. Twogood, 7 Iowa, 252; State v. Buchanan, 5 Har. & J. (Md.) 317, 333, 9 Am. Dec. 534, Mikell's Cas. 358; U. S. v. Worrall, 2 Dall. (Pa.) 384, Mikell's Cas. 1; Guardians of Poor v. Greene, 5 Binn. (Pa.) 554, Mikell's Cas. 5; State v. Pulle, 12 Minn. 164 (Gil. 99), Mikell's Cas. 16; Com. v. Cramer, 2 Pears. (Pa.) 441, Mikell's Cas. 47; Bloom v. Richards, 2 Ohio St. 387.

In Com. v. Chapman, 13 Metc. (Mass.) 68, 69, Chief Justice Shaw said: "To a very great extent, the unwritten law constitutes the basis of our jurisprudence, and furnishes the rules by which public and private rights are established and secured, the social relations of all persons regulated, their rights, duties, and obligations determined, and all violations of duty redressed and punished. Without its aid, the written law, embracing the constitution and statute laws, would constitute but a lame, partial, and impracticable system. Even in many cases where statutes have been made in respect to particular subjects, they could not be carried into effect, and must remain a dead letter, without the aid of the common law. In cases of murder and manslaughter, the statute declares the punishment; but what acts shall constitute murder, what manslaughter, or what justifiable or excusable homicide, are left to be decided by the rules and principles of the common law. So, if an act is made criminal, but no mode of prosecution is directed, or no punishment provided, the common law furnishes its ready aid, prescribing the mode of prosecution by indictment, the common-law punishment of fine and imprisonment. Indeed, it seems to be too obvious to require argument, that without the common law, our legislation and jurisprudence would be impotent, and wholly deficient in completeness and symmetry, as a system of municipal law."

and some of the other states it was expressly recognized and adopted by the constitution or by statute.11

Our English ancestors also brought with them such of the English statutes as had been enacted and were in force at the time of their emigration, and were applicable to their new condition, and these also became a part of their common law, without being re-enacted.12 Other English statutes, enacted after their emigration, and before the Revolution, in amendment or modification of the common law, were adopted in the colonies by general consent, and thus became a part of their common law.13

In addition to these sources of our common law, some usages growing out of the peculiar situation and exigencies of the colonists were adopted by general consent.14

No part of the common law of England was adopted or is in force in this country that is inapplicable to our state and condition; and as the condition of the people may vary in the different states, what is recognized as common law in one state may not be so recognized in another.15

11 See Com. v. Chapman, 13 Metc. (Mass.) 68; Com. v. Churchill, 2 Metc. (Mass.) 118, Beale's Cas. 6; Com. v. York, 9 Metc. (Mass.) 93, 110; Stuart v. People, 4 Ill. 395, 404; Sans v. People, 8 Ill. (3 Gilm.) 327; State v. Cawood, 2 Stew. (Ala.) 360; Dawson v. Coffman, 28 Ind. 220; State v. La Forrest, 71 Vt. 311, 45 Atl. 225.

12 Com. v. Chapman, supra; Com. v. Knowlton, 2 Mass. 530, Beale's Cas. 1; Com. v. Leach, 1 Mass. 59; State v. Moore, 26 N. H. 448, 455, 59 Am. Dec. 354; State v. Rollins, 8 N. H. 550, 559; Sans v. People, supra; Dawson v. Coffman, supra. See Republica v. Mesca, 1 Dall. (Pa.) 73, Mikell's Cas. 10, where the statute 28 Edw. III, c. 13, allowing foreigners a trial per medietatem linguae was held to be of force in Pennsylvania. 13 Com. v. Chapman, supra; Com. v. Knowlton, supra. Generally, however, statutes passed in England after emigration did not become a part of our common law. Com. v. Lodge, 2 Grat. (Va.) 580.

14 Com. v. Chapman, supra; Com. v. Knowlton, supra; Guardians of the Poor v. Greene, supra; Com. v. Leach, supra.

15 People v. Randolph, 2 Park. Cr. R. (N. Y.) 174; Williams v. State, 14 Ohio, 222, 45 Am. Dec. 536; Stuart v. People, 4 Ill. 395, 404; Simpson v. State, 5 Yerg. (Tenn.) 356; U. S. v. Worrall, 2 Dall. (Pa.)

Louisiana and Texas, having been settled respectively by the French and Spanish, were originally subject to the civil law, but the common law as to crimes and criminal prosecutions has been adopted by statute in both states to some extent.16

(b) Offenses against the United States.-The federal courts cannot exercise common-law jurisdiction in criminal cases. Under the constitution of the United States, they can exercise such power only as is conferred upon them by congress. Therefore, before any act can be punished as a crime against the United States, congress must make it a crime, affix a punishment, and declare the court which shall have jurisdiction of the offense.17 Congress has passed statutes making many acts

384, Mikell's Cas. 1; Guardians of Poor v. Greene, 5 Binn. (Pa.) 554, Mikell's Cas. 5.

As to misdemeanors the common law punishments were not brought over by the first settlers of Pennsylvania, though the law as to felonies was. See James v. Com., 12 Serg. & R. (Pa.) 220, Mikell's Cas. 7, where a sentence to the ducking stool was held unauthorized.

16 See State v. McCoy, 8 Rob. (La.) 545, 41 Am. Dec. 301; Grinder v. State, 2 Tex. 339.

In Louisiana, the act of 1805, for the punishment of crimes, defined many offenses, but, in the case of a number of the more familiar crimes, such as murder, rape, robbery, etc., simply described them by name, without further definition; and section 33 of the act provided that the crimes "hereinbefore named" should be "taken, intended, and construed according to the common law of England." The present statute leaves out the words first quoted, and declares: "All crimes, offenses, and misdemeanors shall be taken, intended, and construed ac cording to and in conformity with the common law of England," etc. It has been held that this does not adopt the common law, so as to punish in Louisiana all the crimes known to the common law, but merely adopted the common-law definitions of those offenses declared to be crimes by the act of 1805. State v. Smith, 30 La. Ann. 846; State v. Depass, 31 La. Ann. 487; State v. Gaster, 45 La. Ann. 636, 12 So. 739. Except to this extent, there can be no crime in Louisiana which is not defined and denounced by statute. Except as to the crimes denounced by name in the act of 1805, and which are to be taken according to the common-law definitions, the legislature must define crimes. State v. Gaster, 45 La. Ann. 636, 12 So. 739.

17 This was settled in 1812 in U. S. v. Hudson, 7 Cranch (U. S.) 32, Beale's Cas. 3; and it was held in that case that for this reason the

crimes, and conferring jurisdiction of them upon the federal courts. In many instances it has merely designated the offenses by their common-law name, as "murder," "manslaughter," "robbery," etc. In such cases we must look to the common law for the definition of the offense.18 The offense, however, is purely a statutory one.

(c) Offenses in the District of Columbia.—The common law of Maryland, as it existed at the time the territory embraced in the District of Columbia was ceded by that state to the United States, and the statutes in force at that time, continued in force in the District when it was created by congress, and are now in force there except in so far as they have been changed by act of congress. 19

13. How the Common Law is Evidenced and Determined.

For the most part, the common law is in fact unwritten law, -usage and tradition,-but there is abundant evidence of it in the reports of decisions, and in the writings of recognized authorities, like Coke, Hale, Hawkins, Foster, East, and others. The judges determine from such sources what the law is. What this law is, said Blackstone, is to be determined "by the judges in the several courts of justice. They are the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by oath to decide according to the law of the land. The knowledge of that law is derived from experience and study, and from being long personally accustomed to the judicial decisions of their predecessors."20

* *

*

circuit court of the United States for the district of Connecticut could not take jurisdiction of an indictment for a libel on the president and congress. See, also, U. S. v. Eaton, 144 U. S. 677; U. S. v. Worrall, 2 Dall. (Pa.) 384, Mikell's Cas. 1; U. S. v. Coolidge, 1 Wheat. (U. S.) 415; Barclay v. U. S., 11 Okl. 503, 69 Pac. 798.

18 In re Greene, 52 Fed. 104; U. S. v. Coppersmith, 4 Fed. 198.

19 Pollard v. Lyon, 91 U. S. 225, 238; U. S. v. Simms, 1 Cranch (U. S.) 252; Kendall v. U. S., 12 Pet. (U. S.) 613; State v. Cummings, 33 Conn. 260, 89 Am. Dec. 208.

20 1 Bl. Comm. 69.