trict 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 de termined "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

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,

long personally accustomed to the judicial decisions of their predecessors." 20 "In coming to such decision," said Chief Justice Shaw, "judges are bound to resort to the best sources of instruction, such as the records of courts of justice, well-authenticated histories of trials, and books of reports, digests, and brief statements of such decisions, prepared by suitable persons, and the treatises of sages of the profession, whose works have an established reputation for correctness.'

" 21

In other words, it is the duty of the courts to determine what the established rules and customs of the common law are, and then to apply them to the facts of the particular case that may be before them for decision. It is not necessary that they shall be able to point to a decided case exactly similar in its facts. It is sufficient if the facts bring the case within established principles. "Acts deemed to be injurious to the public have, in some instances, been held to be misdemeanors, because it appeared to the court, before which

20 1 Bl. Comm. 69.

21 Com. v. Chapman, 13 Metc. (Mass.) 68. And see Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776.

they were tried, that there was an analogy between such acts and others which had been held to be misdemeanors, although such firstmentioned acts were not forbidden by any express law, and although no precedent exactly applied to them.” 22

22 Steph. Dig. Crim. Law, art. 160. And see Com. v. York, 9 Metc. (Mass.) 93, 110; Com. v. Callaghan, 2 Va. Cas. 460, 462, Beale's Cas. 116; Walsh v. People, 65 Ill. 58, 16 Am. Rep. 569, Beale's Cas. 128; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, Beale's Cas. 113; State v. Buchanan, 5 Har. & J. (Md.) 317, 333.

"It is impossible to find precedents for all offenses. The malicious ingenuity of mankind is constantly producing new inventions in the art of disturbing their neighbors. To this invention must be opposed general principles, calculated to meet and punish them." Com. v. Taylor, 5 Binn. (Pa.) 277.

In the introduction to Stephen's Digest of the Criminal Law (page VIII.) it is said: "It is not till a very late stage in its history that law is regarded as a series of commands issued by the sovereign power of the state. Indeed, even in our own time and country, that conception of it is gaining ground very slowly. An earlier, and, to some extent, a still prevailing, view of it is that it is more like an art or science, the principles of which are at first enunciated vaguely, and are gradually reduced to precision by their application to particular circumstances. Some

14. Abolition of the Common Law.

In some states, the common law, in so far as it punishes offenses, has been altogether abolished, while in all states it has been to some extent abrogated or superseded by statute. The question, what constitutes an implied repeal of the common law, will be considered in another section.23

In Ohio, no act, however atrocious,—even sodomy, can be punished criminally except in pursuance of a statute.24

how, no one can say precisely how,

certain principles came to be accepted as the law of the land. The judges held themselves bound to decide the cases which came before them according to those principles, and, as new combinations of circumstances threw light on the way in which they operated, the principles were, in some cases, more and more fully developed and qualified, and, in others, evaded or practically set at naught and repealed. Thus, in order to ascertain what the principle is at any given moment, it is necessary to compare together a number of decided cases, and to deduce from them the principles which they establish."

24 State v. Smith, 12 Ohio St. 466, 80 Am. Dec. 355; Mitchell v. State, 42 Ohio St. 383; State v. Lafferty, Tappan (Ohio) 113, to the contrary, is overruled. See Mitchell v. State, supra.

In Iowa, the principles of the common law are recognized for the purpose of construing a statute punishing a crime, and merely describing it by a name known to the common law, as murder, robbery, assault and battery, etc.,25 but no act is punishable as a crime unless it is made so by statute.26

In Indiana, it is expressly declared by statute that crimes and misdemeanors "shall be defined," and "the punishment therefor fixed," by statute, and not otherwise. No act is a crime unless it is made so by statute.27 But it has been held that this provision does not prevent the legislature, in punishing an act which was an offense at common law, from describing it by merely giving its common-law name. The common law may theu be looked to in order to ascertain what acts are necessary to constitute the crime.28

In Texas it was formerly provided that no person should be punished for any act or omission, as a penal offense, unless the same

25 State v. Twogood, 7 Iowa, 252.

26 Estes v. Carter, 10 Iowa, 400.

27 Stephens v. State, 107 Ind. 185; Jones v. State, 59 Ind. 229.

28 Ledgerwood v. State, 134 Ind. 81; State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117.