Page:Dakota Territory Reports.djvu/82

 as where matters of criminal practice are "regulated by law," they refer to nothing.

The first Act of Criminal Procedure passed in the Territory, was that of 1862-3. The second was that of 1868-9. Now the repeal of the Act of 1868-9 by that of 1872-3, left nothing but the Act of 1862-3, to which the expression quoted above could refer. Hence, we hold that these words are not meaningless, but do refer to the Act of 1862-3; and that the intention of the legislature was to incorporate the common law upon that act, and thus by the act and the common law to create a harmonious system in which the common law should constitute the ground work, and the statute specific directions in matters of criminal procedure. It is well understood by the profession in the Territory, that this statute (the one of 1862-3) was not full, i. c, its provisions did not meet every emergency; therefore, the legislature could see the necessity of commingling its provisions with the common law.

The theory that the common law alone should be a rule of procedure seems to us unreasonable. The Common Law of England was so modified by English statutes, that at this day, to sever it and bring it to a new country and apply it without more modern machinery, is practically an impossibility. On the contrary, to receive it in connection with special statutes, is in accordance with the principles of the American system, and the principles of our jurisprudence.

It is not the duty of the court, therefore, to strike out the common law and act alone upon the statutes of the Territory, and go back to the common law alone, but to weave our statutes and the common law into one uniform texture of jurisprudence, thus construing the statutes in harmony with our modem policy and with the common law, and not adopting either to the exclusion of the other.

The next point of objection to the legal authority of the Act of 1862-3, and the doctrine of a revival of a repealed statute by the repeal of the repealing act, arises from an Act of Congress which it is contended bears upon this question; vide 16 U. S. Statutes at Large, 431. The section of the act relied upon is as follows: