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that he is legally entitled to its full control and use could not charge for impensce voluptuariæ, or ornaand is neither bound to render accounts nor find secur- mental improvements, but he was permitted to avail ity. He was entitled to employ the Vindicatio (an ac- himself of the actio mandati, the usual action to tiou to vindicate title to real property) against every enforce agency, when the wife consented to the outfit; possessor of the dotal property. He likewise possessed and the actio negotiorum gestorum, when she did not, the amplest right of alienation, with the exception of C. 5, 13, 1, 5. and had also a jus tollendi. The action the fundus dotalis, or dotal land. This he could not which lies for the restitution of the dos is actio er alienate or mortgage, not even with the consent of the stipulata. This action was given by the ancient law wife. Again, he could not effect any alteration in the only when restitution was stipulated for, otherwise the legal relations of her real rights. Any alienation was action given was that of the actio rei uxoriæ, which void, and the wife may declare it to be void from and never passed to the heirs. The plaintiff is the party after the time she became entitled to demand the res- entitled to obtain restitution; the defendant, the hustitution. Von Vaugerow is of the opinion that the band and his heirs. In addition to the above, the wife husband may even vindicate the alienated fundus has the actio hypothecaria, by virtue of her legal marupon giving indemnity to the defendant. Puchta and riage, and also the actio in rem, against every possessor others differ from him on this point. There are ex- of the dotal property. The Donatio Propter Nuptias ceptions to the general rule which must be noted. (or to employ the Byzantine name, the Antipherna), 1. In the case of a fundus estimatus.
was an arrangement corresponding to the dos but of 2. Where it is certain that the dos does not revert to far less antiquity. The first notion we have of it is in the wife or her heirs.
a Constitution of Theodosius & Valentinius, where for3. When by a valid permutatio dotis (an exchange of feiture of the donation is taken along with forfeiture the dos) something else is given in lieu of the fundus. of the dos, as a punishment for causeless divorce.
To these cases the prohibition does not apply. A Justinian says it is in name and really the same as dos, strict responsibility is imposed upon the husband in being a correlative contribution by the husband to the relation to the future operative rights of the wife. The wife. Justinian gave the wife a real action to recover wife, however, is not without a remedy as regards the the property included in the gift. He says in his Indos, even during her marriage. Sbe may claim that stitutes, that there is also another kind of donation the dos shall be applied according to the object. She inter vivos, unknown to the old jurists. It was called is exempt from providing real security when she ex- the donatio ante nuptias prenuptial gift), and implied pects to receive a piece of ground as a dotal gift; she as a tacit condition that it should not be binding till may adopt precautionary measures for the preservation followed up by the marriage. It was called ante nupof her dos, and in case of Eviction, and even during tias because it was accomplished before the marriage marriage, look to the Auctor of the dos, and she may and after the celebration of the nuptials no such gift claim half the treasure-trove found on the fundus was bestowed. The Emperor Justinus, his father, dotalis. If her husband becomes poor or a bankrupt, seeing that the increase of doweries after marriage was the wife is entitled to reclaim her dower. The right allowed, was the first to permit by his Constitution of the husband to the dos is extinguished by the ter- that in such events the donatio ante nuptias might be mination of the marriage, and in such a case he must increased also, even though the marriage had already return the dower. He is only allowed to retain it taken place. But the name remained, though now when it has been secured to him by agreement. In unsuitable, for it was called prenuptial, while it thus case of the death of the husband, the wife and her received a post-nuptial increase. Justinian carefully heirs are entitled to the dos, unless it has been suiting names to things, called it not ante nuptias, but constituted by a third party, and its return has been propter nuptias, and put them on the same footing as stipulated for under this condition. On the death of dowries in this respect, that as dowries are not only the wife, the heirs are entitled to claim the dos adven- increased but come into being when the marriage has titia, except when the extraneus, who has constituted already taken place, so too those gifts brought in the dos, has reserved this right to himself (dos recep- propter nuptias may not only precede inarriage, but titia). In case of the dos profecticia, the person who may, even after it is contracted, be both increased bas constituted it takes precedence of the heirs. The and settled. The wife has a legal right of mortgage to father, the heirs and the wife have also a claim for the same, and if the marriage be dissolved by fraud of restitution, though it may not have been promised to the husband, the donation reverts to her. The custom them. In respect to land, restitution must take place has now, however, become obsolete. The children of immediately upon the dissolution of the marriage; in the marriage had no interest in the donation any more case of movable property, within a year. The subject- than in the dos. C. 5, 318. The relations of property matter for restitution is what the husband has received subsisting between husband and wife may be the subdotis nomine. To this, however, must be added all jeot of mutual contracts. The agreements by which fruits and accessions before and after the marriage. this is effected are termed Pacta Dotalia; they do not Fruits acquired during marriage accrue to the husband. require any particular form and may be concluded The husband can claim compensation for necessary upon, before, at the time, or after the marriage; must outlays (impensæ necessariæ) on the dotal property, if not retain any thing repugnant to the aim and object made to prevent the deterioration or loss of the prop- of the marriage contract, nor be opposed to good erty. Ulp. Frag. 6, 15; D. 50, 16, 79. Paul's definition morals, nor be contrary to the purport of the dos, so throws a clearer light on it. He says it is such outlay, as to diminish or endanger the rights of either the as if not made by the husband would rendor him liable husband or the wife in regard to it. The pacta must in damages to the wife to the extent of the loss caused not exclude the right to competency, nor the claim for by his veglect (D. 25, 1, 4,) e. g., repairing a house, compensation, vor the right to the enjoyment of the planting new trees in place of those decayed; medical fruits, nor the liability incurred for culpa, nor the deattendance on slaves, etc. I take it to be such ex- ferring the legal period of restitution. All donations penditure for tho permanent improvement of the prop- between husband and wife are void, and if made to erty. The husband has no right for impensæ utiles and any other person who is connected with husband by voluptuarice (beneficial improvement), beautifying it. the bond of the patria potestas. Gifts only are void, For, says Paul, it would be very hard that a woman not other acts of liberality. Donations are allowed that should be compelled to sell her property to pay for the do not impoverish the donor, nor enrich the donee. improvements that had been made upon it. Justinian | Neither husband nor wife can institute against each allowed the estate to be charged with all beneficial other the Actio furti. Both husband and wife must expenditure, unless the wife had forbidden it. He I strike out the element of theft and choose an action
proper and suitable to the circumstances of the case. among the Franks was a species of partnership, in To this important rule there are only two exceptions. which each had their separate rights. The wife might Where the purloinment takes place at the very moment sue or be sued in her own name, though it was usual of a contemplated separation; in this case the Actio for her to give to her husband a mandate authorizing rerum amotarum is given. Where it occurred before him to conduct her affairs; but without such authority marriage, and divorce subsequently takes place, the he could not interfere. All these regulations are action of condictio furtiva revives. When husband or Roman, and are continued with modifications in the wife gives to the other a just cause of separation, the Code Napoleon, art. 1984. In some nations every guilty party suffers a pecuniary penalty. The guilty thing which the husband and wife jointly acquire durwife loses her dos, so far as she might have reclaimed ing marriage was divided between them or their repreit after the dissolution of the marriage; where no dos sentatives, at its dissolution. The Ripuarians gave the has been constituted, she loses one-fourth of her prop- wife or her representatives one-third, the Saxons the erty, the ownership of which goes to the children, the half. The Alemaps allowed the widow to retain, beusufruct to the father. In case of the wife's adultery sides her dower, all gifts made to her by her own the penalty is increased to a third. The guilty hus- family, and whatsoever she had brought from her band loses the donatio propter nuptias, and when father's house. Among the barbarians the widow, if none has been constituted, he forfeits one-fourth of she continued unmarried, might retain all gifts made his property, in favor of his children, the mother hav- to her by her deceased husband. The Visigoths seem ing the enjoyment of the usufruct. When there are to have allowed the husband and wife each to retain no children the property goes in both cases to the in- ownership of their whole property, but bringing the nocent husband or the innocent wife, as the case may whole into community. Whatever they acquired, liv
ing together, they divided between each other. The penalty of a second marriage, or as it is termed, The French law binds the husband and wife to be “Pænæ secundarum nuptiarum," on the part of the faithful, and help and support each other. A husband husband or wife, he or she sacrifices whatever he or
is bound to protect his wife, and the wife to obey her she has received by virtue of the first marriage, whether husband. The wife is bound to live with her husby inheritance or some other beneficial source. The
band and to accompany him wherever he may think party of the second marriage loses also all property in
proper to reside; and the husband must provide for that which he or she has inherited, or which he may his wife according to his means and station, with all inherit from a child ab intestatio, so far as it has been the necessaries of life. A wife cannot sue in a civil derived from the property of the deceased husband or action without the authority of her husband, even if wife. The property goes, in these cases, to the children
she should carry on a business in her own name, or of the first marriage, according to the principle regu- when she has property settled upon her, or when sepalating succession by intestacy. The party marrying a rate estates exist between the man and wife; nor can second time retains, however, the usufruct. The hus
she give or receive gratuitously, sell, or mortgage, or band or wife entering upon a second marriage cannot
purchase property without the consent of her husband; give to the second spouse more than the minimum but the court of first instance has the power of overamount (inter vivos or mortis causa) reserved to a child | ruling the husband if he should not consent. If the of the first marriage. Whatever has been given in
wife carries on a business distinct from her husband, excess of this is divisible amongst the children of the
she may, without his authority, bind herself for things first marriage. The Binubus or Binuba cannot revoke
which appertain to the business. The husband is any gift made to the children of the first marriage, ex
bound also by her acts, unless their estates are sepacept when the child has made an attempt upon the life
rate. If a husband is convicted of felony, interdicted, of the parent, or has actually outraged the parent, or
or disappears, the wife cannot maintain an action nor caused the parent loss of property. The Binuba loses
contract, without the authority of the court of first the guardianship and right of bringing up the child.
instance. All general powers given by a husband to a A woman who remarries within a year of the disso
wife, even by marriage settlement, are void, except lution of her previous marriage, either by the death
those which relate to the administration of her own of her husband or by divorce, sacrifices in favor of the
property. If the husband is a minor the authority of nearest relatives of her husband all she may have
the court of first instance is required to enable the received from him. She cannot give more than one- wife to contract or to maintain an action. A wife can third of her fortune to her second husband; she can
make her will without the authority of her husband. not acquire property either by gift or legacy, and can By the Roman law a wife could not make her will if only inherit from relatives ab intestatio, as far as the
in the power of her father or in manum (as long as it third degree. Should there be children of the first mar
existed) of her husband. riage, in addition to those penalties, the general consequences of a second marriage take place. In most of the barbarian nations the intended hus
CUSTOM AS TO THE USE OF STREAMS. band was bound to bestow on, or secure to his wife, a
PENNSYLVANIA SUPREME COURT MAY 3, 1880. certain portion of property by way of dower. When there was no contract as to the amount, it was fixed,
PENNSYLVANIA Coal Co. v. SANDERSON. in some nations, at a certain sum. The wife, in gene
A coal mining company pumped from its mines water which ral, was entitled to the enjoyment of her dower from
polluted a previously pure stream into which it found its the time of her marriage. By the early laws, the wife
way. In an action for damages against the company by a had absolute dominion over it; latterly she was re- riparian owner on the stream, held, that the fact that coal stricted in the disposal of it by certain laws in favor mining is an important industry would not relieve defendof her children. Justinian by Novellae, 97, C. 1, and
ants from liability and that they could not justify their ac127, C. 3, restricted the right which the widow had
tion upon the ground that it was the customary mode of enjoyed by the old Roman laws, and this has been
disposing of water pumped from mines in that region to followed in the Code Na eon, art. 1554. The dos or
allow it to flow into the streams, there being a lack of the dower of the Germans differed from that of the Ro
necessary age to establish a general custom, and such a cus
tom would be unreasonable and unlawful. mans in this, that it was given by the husband to the
CTION by J. Gardiner Sanderson and wife against
the Pennsylvania Coal Company to recover for parents or relations to the husband; and the woman the injury done to a stream of water running through became subject to the law of her husband. Marriage plaintiffs (Sanderson's) grounds by the working of de
wife, not by the wife to the husband. By marriage Ao
fendant's colliery. In 1868 plaintiff named purchased drained by Meadow Brook, and the pollution of its the premises through which this stream ran and waters has occurred since the plaintiff's purchase. As erected a house thereon. The stream was one of pure a general custom, it lacks the necessary age, for the bewater running from a spring above the grounds. This ginning of deep coal mining in the regions above stream constituted one of the inducements to plaintiff named is quite within the memory of men yet living. for purchasing, and the improvements on the place Wanting this it fails in a particular essential to the made by him, which included a fish pond, water pipes establishment of such a custom. Jones v. Wagner, 16 and dam for forcing the water into his house, cost P. F. S. 429. But more fatal still to the defendant's about $80,000. Soon after the improvements were com- pretension is the fact that the effort is thus to justify pleted the defendants opened a colliery about three the disturbance of private property for the advancemiles above plaintiff's grounds and commenced pump- ment of the private interests of the defendant corpoing the water therefrom, which water found its way ration, and that, not under the plea of an ancient cuswithout being directed by defendants into the stream in tomary use, arising before the plaintiff acquired title, question. This water so polluted the stream as to ren- but of a general custom which would authorize the der it unfit for drinking or washing and so injurious to present injury or destruction of the rights of riparian the fish in plaintiff's ponds that they died, and so as to owners. But a custom such as this would not only be cause injury or destruction to the dam and pipes put unreasonable, but also unlawful, and therefore worthdown by plaintiffs. On the first trial of the case less. It is urged that mining cannot be carried on plaintiffs were nonsuited, but the nousuit was reversed without this outflow of acidulous water, hence of neon appeal (5 Nor. 401; see, also, 18 Alb. L. J., 162). From cessity the neighboring streams must be polluted. a judgment in favor of plaintiffs defendants took a This is true, and it is also true that coal mining would writ of error. Other facts as disclosed by the opinion. come to nothing without roads upon which to trans
port the coal after it is mined; therefore roads are A. T. McClintock, 1. J. Post and Samuel Dickson, for necessary; but it does not follow that for such purplaintiffs in error.
pose the land of an adjacent owner may be taken, or A. Ricketts, for defendants in error.
his right of way incumbered, without compensation.
If indeed the custom set up were to prevail, then, at GORDON, J. The material points in this case have
least so far as coal mining companies are concerned, been most fully and carefully discussed in the opinion
there would be an abrogation of the 8th section, art. delivered by our late lamented brother Woodward in
16 of the Constitution, which provides that “municithis same case, when here before, and which may now
pal and other corporations, invested with the privilege be found in 5 Nor, 401. As that opinion has been
of taking private property for public use, shall make
just compensation for property taken, injured, or defaithfully followed in the court below, we are relieved of any extended examination of the case as now pre
stroyed by the construction and enlargement of their
works, highways, or improvements." Not only would sented. Whether or not the injury complained of re
we thus bave a custom superior to the supreme law of sulted from the act of the defendant in pumping dele
the land, but one reaching even beyond the possible terious mive water into the Meadow Brook was fairly sovereignty of the State, in that it would empower subunitted to the jury, and that body found that that
private persons, for private purposes, to injure or dewas the immediate cause of the injury. When, in
stroy private property, and that without compensation. 1868, Mrs. Sanderson purchased her property on Meadow
A custom such as this is radically bad, and cannot be Brook, she found the water of this stream pure aud
sustained. valuable for domestic purposes. Her right to have and
Judgment affirmed. use these waters as she found them is undoubted. This
Paxson and Sterrett, JJ., dissent. right, though of an incorporeal character, was as abso
Sharswood, C. J., and Green, J., absent. lute as her right to the land through which they flowed. But that right has been destroyed, or its value seriously impaired, by the direct act of the defendant.
FELONIES UNDER FEDERAL LAWS. As then it has been the cause of the injury, why should it not be held to an account therefor? The
UNITED STATES CIRCUIT COURT, W. D. TENNESSEE.
JANUARY 31, 1880. answer is twofold: (1) It is said this pollution of this brook results from the necessities of coal mining, and, as that is an industry important to the welfare of this
UNITED STATES V. COPPERSMITH. Commonwealth, the right of the plaintiff must yield to A defendant indicted for making counterfeit coin is entiit. But this argument is fallacious in this, the mining tled to only three peremptory challenges of jurors under operations of the defendant do not involve the public
section 819 of the Revised Statutes. The offense is not welfare, but are conducted purely for the purposes of
a felony under any existing act of Congress.
All offenses against the United States being statutory, they private gain. Incidentally all lawful industries result
are not felonies if the punishment be less than capital, in the general good; they are, however, not the less
unless they are by the statute so declared to be, either instituted and conducted for private gain, and are in express terms or by necessary implication. used and enjoyed as private rights over which the pub- In the criminal jurisprudence of the Federal law there are lic has no control. It follows that none of them, how- three distinct classes of felonies, not capitally punished. ever important, can justly claim the right to take and 1. Where the offense is declared by statute, expressly or use the property of the citizen without compensa
impliedly, to be a felony. 2. Where Congress does not tion.
define an offense, but simply punishes it by its common.
law namo, and at common law it is a felony. 3. Where (2) It is urged that the customary mode of disposing
Congress adopts a State law as to an offense and by that of water pumped from the mines in the Lackawanna law it is a felony. and Wyoming coal regions has been to allow it to flow Congress has power to create felonies or reduce commoninto the adjacent natural watercourses. Of this proof law felonies to misdemeanors, but such gradation is was offered, and that for the purpose of showing a inapplicable to our system of jurisprudence; and in the general custom thus to use the rivers, creeks and
present state of legislation, to declare an offense a smaller streams of this part of the State, and, it may
felony is brutum fulmen, except that it may incline the be added, so to destroy the rights of riparian owners.
legislative mind to more severe punishment. In other
respects it seems an adyantage to the offender, for he As a local custom or prescription, this has no applica- then has ten challenges instead of three, and possibly tion to the case in hand, for the colliery of the defend- may be entitled to be proceeded against only by indict ant appears to be the only one within the territory ment and not by information,
NDICTMENT for counterfeiting. The facts appear felony for the phrase in the act of 1865 which was in the opinion.
thus condemned because it limited the right of peW. W. Murray, district attorney, and J. B. Clough,
remptory challenges to cases of felony and thereby left assistant district attorney, for the United States.
it impossible to determine under the act of 1865 to
what cases it should apply. Perhaps a proper conGeorge Gantt, for defendant.
struction of the act of March 3, 1865, taken in connecHAMMOND. J. The defendant being on trial for tion with the law as it then stood under the decision counterfeiting the coin of the United States, has pe- in the case of United States v. Shackelford, supra, and remptorily challenged three of the jurors tendered to the act of 1840, would have been to look to the State him, and claims the right to challenge another and practice to determine in what cases tho right of peany number to the extent of ten, under section 819 of remptory challenge “now exists," and to allow ten the Revised Statutes. He insists that the offense of challenges in all such cases; for the State practice then making counterfeit coin is a felony at common law furnished not only the rule as to number but the rule and therefore a felony in the purview of that section; as to the kind of offense in which the right of pehe also insists that being punishable by imprisoment remptory challenge existed, as we have already seen. at hard labor, which necessarily implies confinement There would have been some certainty in this, but in a penitentiary, it is a felony according to the ordi- now there is no other course but to determine by the nary acceptation of the term in American law; that common law what Congress meant in this section of Congress used the term in that sense in this statute, the Revised Statutes by the words “any other felony." and did not intend to indicate capital offenses already If Congress uses a common-law term in defining a provided for by the same section of the Revised crime, or in any statute, we must look to the common Statutes.
law for a definition of the term used. 2 Abb. Prac. Section 819, above referred to, is as follows: “When 171; Conk. Treatise, 178 (5th ed.); United States v. the offense charged is treason or a capital offense, the Palmer, 3 Wheat. 610; United States v. Wilson, Baldw. defendant shall be entitled to twenty and the United 78, 93; United States v. Barney, 5 Blatchf. 294, 296; States to five peremptory challenges. On the trial of United States v. Magill, 1 Wash. C. C. 463. The Massaany other felony, the defendant shall be entitled to ten chusetts Code commissioners, many years ago, in and the United States to three peremptory chal- enumerating felonies within the provisions of their lenges; and in all other cases, civil and criminal, each Code, in a note, add that the meaning "of the word party shall be entitled to three peremptory challenges,' ‘felony' (as by them defined), is limited to the use of etc.
the word in this Code, and is not to be confounded It is apparent that it was here intended to designate with the common-law signification of the same term, by the term “any other felony," other offenses than whatever that meaning may be, for it is a matter of no capital offenses, for they are otherwise specially pro- little difficulty to settle it." Report; Title Explanation vided for by this section.
of Terms cited 1 Hale's P. C. (A. D. 1847) 575, note. Prior to legislation by Congress this matter of pe- The Supreme Court of Alabama said, in Harrison v. remptory challenges in the Federal courts was in some State, 55 Ala. 239, 241, that it is not easy to deterconfusion until the Supreme Court declared that they mine in all cases what are felonies and crimen falsi. might, by rule, adopt the State practice. United “To predicate of an act,” says the Supreme Court of States v. Shackelford, 18 How. 588; United States v. Ohio, “that it is felonious, is simply to assert a legal Douglass, 2 Blatchf. 207; United States v. Reed, id. conclusion as to the quality of the act; and unless the 435, 447, and note; United States v. Cotlingham, id. 470; act charged, of itself, imports a felony, it is not made United States v. Tallman, 10 id. 21; United States v. so by the application of this epithet. Indeed, the Devlinr, 6 id. 71.
term felony has no distinct and well-defined meaning When we could resort to the State practice, it was applicable to our system of criminal jurisprudence. generally found that legislation had accurately regu- In England it has a well known and extensive signifilated the right of challenge by distinctly classifying cation, and comprises every species of crime which at offeuses with such statutory definitions as left no room common law worked a forfeiture of goods and lands. for doubt. But since Congress has legislated we can But under our Criminal Code, the word 'felonious,' no longer look to the State laws for guidance, nor to although occasionally used, expresses a signification the commou law, but only to the acts of Congress no less vague and indefinite than the word ' criminal.' themseives, which unfortunately have only increased Matthews V. Stute, 4 Ohio St. 539, 542. In the Conthe confusion by the use of an indefinite term. I am stitution of Tennessee the words “criminal charge” not advised of any reported case construing this sec- are held to be synonymous with “crimes," which is tion, nor of the practice in regard to it, except that it said to .mean, technically, “felonious" offenses. Mcis said at the bar that heretofore in this district, ten Ginnis v. State, 9 Humph. 43. challenges have not been allowed in any case where the The term "felony" appears to have been long used to offense charged was not, by the statute creating it, signify the degree or class of crime committed rather declared to be a felony. The first act of Congress, thau tho penal consequences of the forfeiture occapassed March 3, 1865 (13 Stats. 500), after providing for sioned by tho crimo according to its original significatreason and capital offenses, as is done by this section tion. 1 Archb. Cr. Pl. 1, note; 1 Russ. on Crimes, 43. 819, provided that “on the trial of any other offense in Capital punishment by no means enters into the which the right of peremptory challenge now exists, the true definition of felony. Strictly speaking the term defendant shall be entitled to ten and the United comprised every species of crime which occasioned at States to two peremptory challenges." The criticism common law the total forfeiture of either lands or of Judge Conkling, in the fifth edition of his Treatise, goods, or both. That was the only test. Felonies by page 632, on this act, demonstrates how indefinite were common law are such as either concern the taking the terms used, and he concludes that the section was away of life, or concern the taking away of goods, nugatory as to all crimes except treason and capital concern the habitation, or concern the oboffenses; because the right of peremptory challenge, struction of the execution of justice in criminal he says, only exists in cases of felony, and now nothing and capital causes, as escapes, rescues, etc. 1 Hale's P. is felony except capital offenses. In this criticism the C. 411. These crimes were of such enormity that the learned district judge of Oregon seems to concur, for common law punished them by forfeiture. 1. The he also declares the section nugatory. United States v. offender's wife lost her dower. 2. His children became Randall, 1 Deady, 524, 548. Yet, strange to say, the act base and ignoble and his blood corrupted. 3. He forof June 8, 1872 (17 Stats. 282), substitutes this word feited his goods and chattels, lands and tenements.
The superadded punishment was either capital or other- statute, by the common law, it must be understood wise according to the degree of guilt, that is, the that Congress used it in this modern sense. Because, turpitude of the offense. There were felonies not pun- where the words of a statute construed technically isbable with death, and on the other hand, there were would be inoperative, but construed according to their offenses not felonies which were so punishable. How- common signification would have a reasonable operaever, the idea of felony was so generally connected tion, the courts do sometimes adopt the latter conwith capital punishment, that erroneously, it came to struction. Yet, it will be found that this modern idea be understood that all crimes punishable with death of felony has come into general use by force of State were felonies, and so, if a statute created a new offense legislation on the subject, so far as it is legally estaband declared it a felony, but prescribed no punishment, lished. From a very early day, and as a necessity, the by implication of law it was punishable with death. State Legislatures have passed laws defining and This has been changed by statute, and now where a enumerating felonies as those crimes punishable by felony is created and no punishment prescribed, it is confinement in the penitentiary; and this has come to transportation for seven years, or imprisonment, with be the law in nearly every State. In Tennessee the or without hard labor, not exceeding two years, and law of 1829 elaborately enumerates felonies, and punfor a second felony, transportation for life. 7 and 8 ishes them with hard labor in the jail or penitentiary, Geo. IV. The punishment for a misdemeanor at com- and the act of 1873, ch. 57, makes all crimes, punishable mon law was fine or imprisonment, or both, unlimited, by confinement in the penitentiary, felonies, and so bot in the most aggravated cases seldom exceeding two defines the term. C. & N. 316; Acts of 1873, p. 87. We years. Tomlin's Dict., title “Felony;" 4 Black. Com. have no such legislation by Congress; section 5391 of 94; 3 Inst. 43; 4 Bacon's Abridg., tit. “Felony" and the Revised Statutes is limited to offenses committed tit. “Forfeiture;' Viner's Abridg., tit. “Forfeit- in places ceded to the United States, and adopts the ure;" 1 Hale's P. C. 411, 574; 1 Archb. Cr. Prac. 1 and State law as to such offenses if not otherwise provided note, and p. 185; 1 Russ. on Crimes, 42; 1 Bish. Cr. for; and of course, in such cases, if the offense is a Law, SS 580-590; U. S. v. Williams, 1 Cranch's C. C. felony by State law, it becomes a felony by this sec178; Adams v. Barrett, 5 Ga. 404, 412; State v. Dewer, tion. 65 N. C. 572; United States v. Smith, 5 Wheat. 153, 159 ; There is no uniformity in the legislation of Congress United States v. Staats, 8 How. 41.
as to the punisbment of criminal offenses, and we Tested by the common law then this term has no often find statutory misdemeanors punished more very exact and determinate meaning and can apply to severely than statutory felonies; and while some of no cases in this country except treason where limited the statutes prescribe hard labor as a part of the punforfeiture of estate is allowed. But technically that is ishment, when necessarily the confinement must be in a crime of a higher grade thau felony, although it im- some prison where it can be so enforced, on the other ports also a felony. If it be conceded that capital puu- hand the simple imprisonment prescribed may become ishment imports a felony there can be none, at common confinement with hard labor by selecting a prison law, except capital crimes. But that test is untech- where it is a part of the discipline; so that we often mical and founded in error. It does not always apply, find prisoners convicted of the same offense and senand it is as arbitrary to say that a crime punished cap- tenced to the same punishment, undergoing in fact itally is a felony, as it is to say that one punished by different punishments. Ex parte Karstendick, 93 U. imprisonment in the penitentiary is a felony. Our an- S. 396. In this case it is held that it is not the intencestors brought with them the common-law grada- tion of our statutes to limit confinement in the penitions of crime, as they stood in their day, and although tentiary to those offenses where hard labor is imposed. tbey organized a government which is wholly destitute Rev. Stats., $ 5539. We find it, therefore, impracticaof a criminal common law, its influence has always ble to apply any such text as that prescribed by the prevailed to produce incongruities arising out of an State legislation above mentioned, as the legislation attempt, even when creating new offenses, unknown of Congress now stands, to the determination of the to any law except our own peculiar system, to keep up meaning of the word “ felony" as used in section 819 its gradations of crime. The Supreme Court, in the now under consideration. case last cited, points out the distinction between the But aside from this, notbing is better settled than use of the word “felony" as descriptive of an offense, that we cannot look to the State laws, in the criminal and as descriptive of the punishment; pronounces it jurisprudence of the United States, for the characterthe merest technicality and holds that where a statute istic elements which go to make up an offense, and creates an offense and declares it a felony it is not enter into it as a part of its legal status; nor to the necessary to plead a felonious intent. Bouv. Dict., common law, nor even to the character of the punish“Feloniously.” The court also speaks of "the moral ment. The Federal courts take no cognizance of State degradation attaching to the punishment actually in- statutes in criminal proceedings, and deduce no crimiflicted," and intimates that it is about all that is left ual jurisdiction from the common law, which has no to us of the common-law idea of felony. There is just force, directly or indirectly, to make an act an offense as much of moral degradation in an offense called by not made so by Congress. Though in all matters rethe statute-makers a misdemeanor, if punished de- specting the accusation and trial of offenders, not othergradingly, as if with the same character of punishment wise provided for, we are referred to the laws and they call it a felony.
usages of the State when the judicial system was orIn American law, forfeiture as a consequence of ganized. 1 Abb. Prac. 197; 2 id. 171; U. $. v. Reid, 12 crime being generally abolished, the word “felony" How. 361; U. $. v. Lancaster, 2 McLean, 431; U. S. v. has lost its original and characteristio meaning, and it Peterson, 1 Wood. & M. 306, 309; U. S. v. Shepherd, 1 is rather used to denote any high crime punishable by Hughes, 520, 522; U. S. v. Taylor, id. 514, 517; U. S. death or imprisonment. Burrill's Dict., tit. “Felony." v. Marwell, 3 Dill. 275, 276; U. S. v. Shepherd, 1 Abb. The term is so interwoven with our criminal law that 431; U. S. v. Cross, 1 McArth. 149; U. S. v. Black, 1 it should have a definition applicable to its present use; Sow. 211; U. $. v. Ebert, 1 Cent. L. J. 205; U. S.r. and this notion of moral degradation by confinement Williams, 1 Cliff. 5; U. S. v. Barney, 5 Blatchf. 294; in the penitentiary has grown into a general under- U. S. v. Watkins, 3 Cr. C. C. 441, 451; U. S. v. Hamstanding that it constitutes any offense a felony, just mond, 2 Woods, 197; U. S. v. McGill, 1 Wash. C.C. as, at common law, the idea of capital punishment be- 463. came inseparably connected with that of felony. The e In those cases where the State laws have been adopted is therefore much force in the suggestion of counsel as in section 5391 Revised Statutes, they stand as if the that since we cannot define this word, as used in this act of Congress had defined the offenses in the very