In actions in the federal courts in a terri tory, the common law is the rule of decision, in the absence of statutes or proof of laws or customs prevailing in the territory; Pyeatt v. Powell, 51 Fed. 551, 2 C. C. A. 367. The common-law rule of decision in a federal court is that of the state in which it is sit ting; Lorman v. Clarke, 2 McLean 568, Fed. Cas. No. 8,516.
Illustrations of what it has been held not to include are the rule respecting convey ance by parol ; Lindsley's Lessee v. Coats, 1 Ohio 245 ; but see Lavelle v. Strobel, 89 Ill. 370; shifting inheritances ; Drake v. Rogers, 13 Ohio St. 21 ; Cox v. Matthews, 17 Ind. 367; Bates v. Brown, 5 Wall. (U. S.) 710, 18 L. Ed. 535; mere possession of land as against miners ; McClintock v. Bryden, 5 Cal. 100, 63 Am. Dec. 87; newspaper communica tions respecting a judge considered as a con tempt in England; Stuart v. People, 3 Scam. (III) 404; cutting timber ; Dawson v. Coff man, 28 Ind. 220; easement by use in party wall ; Hieatt v. Morris, 10 Ohio St. 523, 78 Am. Dec. 280; estates in joint tenancy ; Ser geant v. Steinberger, 2 Ohio 305, 15 Am. Dec. 553; rule as to partial reversal of a judgment against an infant and another ; Wilford v. Grant, Kirby (Conn.) 117; cv pres doctrine ; Grimes' Ex'rs v. Harmon, 35 Ind. 198, 9 Am. Rep. 690; riparian rights to soil under water ; Reno Smelting, Milling & Reduction Works v. Stevenson, 20 Nev. 269, 21 Pac. 317, 4 L. R. A. 60, 19 Am. St. Rep. 364; overruling Vansickle v. Haines, 7 Nev. 249; to running water; Martin v. Bigelow, 2 Aik. (Vt.) 187, 16 Am. Dec. 696; the defini tion of a navigable river ; Fulmer v. Wil liams, 122 Pa. 191, 15 Atl. 726, 1 L. R. A. 603, 9 Am. St. Rep. 88 ; the law of waters as ap plied to large lakes, or to a river which is a national boundary; Champlain & St. L. R. Co. v. Valentine, 19 Barb. (N. Y.) 484.
In criminal law the common law is gen erally in force in the states to some extent, and while it is in some states held that no crime is punishable unless by statute, there are in many states general statutes resorting to the common law for all crimes not other wise enumerated, and for criminal matters generally. When there is no statutory defini tion of a crime named, the common-law defi nition is generally resorted to ; Com. v. Web
ster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; as also are its rules of evidence in criminal cases, and of practice as well as principle in the absence of statutes to the contrary ; Hyde v. State, 16 Tex. 445, 67 Am. Dec. 630; and in Louisiana, although not recognized in civil matters, the common law in criminal cases is expressly adopted; State v. McCoy, 8 Rob. 545, 41 Am. Dec. 301. It has been held to prevail in the District of Columbia as to theft; State v. Cummings, 33 Conn. 260, 89 Am. Dec. 208 ; as to conspiracy in Maryland ; State v. Buchanan, 5 Harr. & J. 358, 9 Am. Dec. 534; kidnapping in New Hampshire ; State v. Rollins, 8 N. H. 550; homicide with out intent to kill in Maine; State v. Smith, 32 Me. 369, 54 Am. Dee. 578 ; and in Tennes see; Jacob v. State, 3 Humph. 493 ; capacity to commit rape in New York; People v. Randolph, 2 Park. Cr. Rep. 174; but not in Ohio; Williams v. State, 14 Ohio 222, 45 Am. Dec. 536.
There is no common law of the United States, as a distinct sovereignty ; Swift v. R. Co., 64 Fed. 59 ; Gatton v. Ry. Co. (Ia.) 63 N. W. 589; Wheaton v. Peters, 8 Pet. (U. S.) 658, 8 L. Ed. 1055; People v. Folsom, 5 Cal. 374; Forepaugh v. R. Co., 128 Pa. 217, 18 Atl. 503, 5 L. R. A. 508, 15 Am. St. Rep. 672; and therefore there are no common law offences against the U. S. ; U. S. v. Hudson, 7 Cra. (U. S.) 32, 3 L. Ed. 259; In re Greene, 52 Fed. 104 ; U. S. v. Lewis, 36 Fed. 449 ; U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 525, 27 L. Ed. 703; U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591. There is a rare and valuable pamphlet on this subject, by St. George Tucker Campbell, of the Philadelphia Bar, which contains a full discussion of this question. For earlier cases before the question was fully settled, see U. S. v. Worrell, 2 Dall. (U. S.) 384, Fed. Cas. No. 16,766; U. S. v. Coolidge, 1 Gall. 488, Fed. Cas. No. 14,857 ; id., 1 Wheat. (U. S.) 415, 4 L. Ed. 124. But the common law is resorted to by federal courts for definition of common-law crimes not defined by statute ; U. S. v. Armstrong, 2 Curt. C. C. 446, Fed. Cas. No. 14,467 ; Ti. S. v. Coppersmith, 4 Fed. 198. See COMMERCIAL LAW.