CHAPTER II. SOURCES OF THE CRIMINAL LAW. I. NECESSITY FOR PROHIBITION BY LAW, 87-9. II. THE COMMON LAW, 10-31. III. THE STATUTE LAW, 8 32-48. IV. EXPIRATION AND REPEAL OF LAWS, 8 49-53. I. NECESSITY FOR PROHIBITION BY LAW. 7. In General. To be a crime, an act must be prohibited and made punishable by law, and it must be so, both at the time it is committed, and at the time it is punished. This prohibition is either by (a) the common or unwritten law, or (b) by statute. 8. Abolition of the Common Law. As we shall presently see at some length, many acts are prohibited and punished by the common or unwritten law, which is that portion of the municipal law which does not rest for its authority upon any express legislative enactment, but upon usage or custom.2 Or it may be punished by the statute law, or express legislative enactments.3 Unless a prohibition can be found in one or the other, 1 Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 377, Beale's Cas. 5. 2 Post, § 10 et seq. no act whatever, however atrocious, is a crime.1 Murder, rape, and robbery are most grievous crimes by the common law, and were punished by death, but they would not be crimes at all if the legislature should abolish the common law, as has been done in several states," and inadvertently fail to enact a statute covering such acts, or enact a statute unconstitutionally. In Ohio, the common law was abolished, in so far as it determines what acts are crimes, and the legislature undertook to cover the whole field by statute. It neglected, however, to provide for the punishment of a man who should have carnal knowledge of a girl under 10 years of age with her consent, and when such an act was committed in that state some years ago, the court had to hold that it was not a crime, and could not be punished. 6 9. Repeal of Law after Commission of Act. As will be shown in a subsequent section, 4 Com. v. Marshall, supra; Rust v. State, 4 Ind. 528; Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355; Com. v. Grover, 16 Gray (Mass.) 602. 5 Post, § 14. 6 Smith v. State, 12 Ohio St. 466, 80 Am. Dec, an act committed while a law is in force prohibiting and punishing it cannot be made the subject of a criminal prosecution after the law has been repealed without a saving clause as to acts previously committed. The law must be in force when proceedings are taken to punish for the act, as well as when the act is committed. II. THE COMMON LAW. 10. Definition.-By the "common law" is meant that portion of the municipal law which does not rest for its authority upon any express act of the legislature, but is founded upon usage and custom. It is called the unwritten law, in contradistinction to the written or statute law.s The common law in the United States consists in 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 355. And see Mitchell v. State, 42 Ohio St. 383; Estes v. Carter, 10 Iowa, 400. See, also, post, § 14. 7 Com. v. Marshall, 11 Pick. (Mass.) 350, 22 Am. Dec. 377, Beale's Cas. 5; Keller v. State, 12 Md. 322, 71 Am. Dec. 596; post, § 52. 8 2 Cent. Dict. & Cyc. p. 1133; 2 Johns. Univ. Cyc. 427. "By the common law is meant those maxims, principles, and forms of judicial proceed 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 arthority 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 ing which have no written law to prescribe or warrant them, but which, founded on the laws of nature and the dictates of reason, have, by usage and custom, become interwoven with the written laws, and, 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. that it hath always been the custom to observe it." 9 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 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 91 Bl. Comm. 68. See 6 Am. & Eng. Enc. Law (2d Ed.) 270, 271. 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; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, Beale's Cas. 113; State v. Rollins, 8 N. H. 550, 559; State v. Danforth, 3 Conn. 112, 114; State v. |