be considered as of full force until repealed by legislative authority."25 The fourth year of James I began on March 24, 1606.

Criminal offenses, not defined in the Criminal Code of Illinois, are punishable under the common law.26 In some states there are no criminal offenses except those expressly declared by statute.

In the absence of evidence of the contrary, the courts of any state presume that the common law prevails in the sister states.27

28

§ 30. Mode of determining the common law. The common law of England may be found by reference to the decisions of the common law courts of that country.2 "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."29 Among the sages of the profession whose works have an established reputation for correctness are Coke, Hale, Hawkins, Foster and East. Stephens says, "Somehow, 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were, in some cases, more and more fully developed and qualified, and in others evaded or practically set at naught and repealed.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

25 Illinois: Hurd's Rev. Stat. (1916) ch. 28, § 1.

26 Illinois: Jones & Add. Ann. Stat., ch. 38, div. II, § 20 (par. 3985).

27 Van Ingen v. Brabrook, 27 Ill. App. 401.

28 Kreitz v. Behrensmeyer, 149 Ill. 496, 36 N. E. 983, 24 L. R. A. 59.

29 Chief Justice Shaw in Commonwealth v. Chapman, 13 Metc. (Mass.) 68.

1930

principle is at any given moment, it is necessary to compare together a number of decided cases, and to deduce from them. the principle which they establish." It is to be observed that it is not essential that the facts of the case in question be "on all fours" with those of a decided case. The analogy between them may be sufficient to justify the application to the former of the principles established by the latter.31

§ 31. Importance of the common law. The great importance of the common law is sometimes lost sight of. However, it constitutes the basis of instruction in all the leading law schools of the country. The reason is, that the common law is the foundation of our legal system. "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. 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 with

30 Introduction to Steph. Dig. Crim. L., p. VIII.

31 Steph. Dig. Crim. L. (5th ed), art. 178. See also, Walsh v. Peo

ple, 65 Ill. 58, 16 Am. Rep. 569; Commonwealth v. York, 9 Metc. (Mass.) 93.

out the common law, our legislation and jurisprudence would be impotent, and wholly deficient in completeness and symmetry, as a system of municipal law.'

32

§ 32. Abolition of the common law. In some states, including Ohio, Oregon and Minnesota, all common-law crimes are abolished by statute.33 In several other states, including Michigan, Iowa, Indiana, Kansas, Texas, Nebraska and Oregon no act is a crime unless so declared by statute; but in these states the principles of the common law are applied in construing the statute. In other words, the statute may limit the description of the crime to its commonlaw name, in which case the principles of the common law may be resorted to in determining what acts are essential to constitute the crime.34

In most of the states, however, common-law crimes have not been abolished. In a state which has a criminal code, but which has not expressly abolished common-law crimes, like Illinois, a common-law crime not covered by the code is still punishable.35

§ 33. Federal courts have no common-law jurisdiction in criminal cases.-Under the United States Constitution the

32 Chief Justice Shaw in Commonwealth v. Chapman, 13 Metc. (Mass.) 68. See also State v. Lafferty, Tappan (Ohio C. P.) 81, Derby's Cases 3; State v. Pulle, 12 Minn. 164, Derby's Cases 6.

33 Johnson v. State, 66 Ohio St. 59, 63 N. E. 607, 90 Am. St. 564; State v. Shaw, 39 Minn. 153, 39 N. W. 305; State v. Ayers, 49 Ore. 61, 88 Pac. 653, 10 L. R. A. (N. S.) 992, 124 Am. St. 1036.

34 In re Lamphere, 61 Mich. 105, 27 N. W. 882; In re Lambrecht, 137 Mich. 450, 100 N. W. 606; State v. Twogood, 7 Iowa 252; Stephens v. State, 107 Ind. 185, 8 N. E. 94;

Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631; State v. Young, 55 Kans. 349, 40 Pac. 659; Prindle v. State, 31 Tex. Cr. 551, 21 S. W. 360, 37 Am. St. 833; State v. De Wolfe, 67 Nebr. 321, 93 N. W. 746; State v. Gaunt, 13 Ore. 115, 9 Pac. 55; State v. Clough (Ia.), 165 N. W. 59.

35 Smith v. People, 25 Ill. 9, 76 Am. Dec. 780; Commonwealth v. McHale, 97 Pa. St. 397, 39 Am. Rep. 808. See also Nider v. Commonwealth, 140 Ky. 684, 131 S. W. 1024, Ann. Cas. 1913E, 1246, and note on Adoption of Common Law in Relation to Crimes.

federal courts have no jurisdiction except that conferred upon them by congress. To render an act punishable as a crime against the United States, congress must declare it a crime, affix a penalty, and declare the court which shall have jurisdiction of the offense.36 It follows, therefore, that the federal courts have no common-law jurisdiction in criminal cases.37

36 United States v. Hudson, 7 Cranch (U. S.) 32, 3 L. ed. 259; United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. 764,

Derby's Cases 1; United States v.
Stickrath, 242 Fed. 151.

37 United States v. Miller, 236 Fed. 798.

CHAPTER III.

CONDITIONS OF CRIMINALITY.

Section

35. Conditions of criminality.

§ 35. Conditions of criminality.-To render a person criminally responsible for the commission of a common-law crime, four conditions must exist. These four conditions of criminality are as follows: (1) The person must be of sufficient age; (2) he must have sufficient mental capacity; (3) he must act voluntarily; (4) he must have criminal intent.

These four conditions are next discussed in the order given, a chapter being devoted to each topic.