that he is legally entitled to its full control and use and is neither bound to render accounts nor find security. He was entitled to employ the Vindicatio (an action to vindicate title to real property) against every possessor of the dotal property. He likewise possessed the amplest right of alienation, with the exception of the fundus dotalis, or dotal land. This he could not alienate or mortgage, not even with the consent of the wife. Again, he could not effect any alteration in the legal relations of her real rights. Any alienation was void, and the wife may declare it to be void from and after the time she became entitled to demand the restitution. Von Vangerow is of the opinion that the husband may even vindicate the alienated fundus upon giving indemnity to the defendant. Puchta and others differ from him on this point. There are exceptions to the general rule which must be noted. 1. In the case of a fundus æstimatus.

2. Where it is certain that the dos does not revert to the wife or her heirs.

3. When by a valid permutatio dotis (an exchange of the dos) something else is given in lieu of the fundus.

To these cases the prohibition does not apply. A strict responsibility is imposed upon the husband in relation to the future operative rights of the wife. The wife, however, is not without a remedy as regards the dos, even during her marriage. She may claim that the dos shall be applied according to the object. She is exempt from providing real security when she expects to receive a piece of ground as a dotal gift; she may adopt precautionary measures for the preservation of her dos, and in case of Eviction, and even during marriage, look to the Auctor of the dos, and she may claim half the treasure-trove found on the fundus dotalis. If her husband becomes poor or a bankrupt, the wife is entitled to reclaim her dower. The right of the husband to the dos is extinguished by the termination of the marriage, and in such a case he must return the dower. He is only allowed to retain it when it has been secured to him by agreement. In case of the death of the husband, the wife and her heirs are entitled to the dos, unless it has been constituted by a third party, and its return has been stipulated for under this condition. On the death of the wife, the heirs are entitled to claim the dos adventitia, except when the extraneus, who has constituted the dos, has reserved this right to himself (dos receptitia). In case of the dos profecticia, the person who has constituted it takes precedence of the heirs. The father, the heirs and the wife have also a claim for restitution, though it may not have been promised to them. In respect to land, restitution must take place immediately upon the dissolution of the marriage; in case of movable property, within a year. The subjectmatter for restitution is what the husband has received dotis nomine. To this, however, must be added all fruits and accessions before and after the marriage. Fruits acquired during marriage accrue to the husband. The husband can claim compensation for necessary outlays (impensæ necessariæ) on the dotal property, if made to prevent the deterioration or loss of the property. Ulp. Frag. 6, 15; D. 50, 16, 79. Paul's definition throws a clearer light on it. He says it is such outlay, as if not made by the husband would render him liable in damages to the wife to the extent of the loss caused by his neglect (D. 25, 1, 4,) e. g., repairing a house, planting new trees in place of those decayed; medical attendance on slaves, etc. I take it to be such expenditure for the permanent improvement of the property. The husband has no right for impensa utiles and voluptuaria (beneficial improvement), beautifying it. For, says Paul, it would be very hard that a woman should be compelled to sell her property to pay for the improvements that had been made upon it. Justinian allowed the estate to be charged with all beneficial expenditure, unless the wife had forbidden it. He

could not charge for impensa voluptuariæ, or oruamental improvements, but he was permitted to avail himself of the actio mandati, the usual action to enforce agency, when the wife consented to the outfit; and the actio negotiorum gestorum, when she did not, C. 5, 13, 1, 5. and had also a jus tollendi. The action which lies for the restitution of the dos is actio ex stipulata. This action was given by the ancient law only when restitution was stipulated for, otherwise the action given was that of the actio rei uxoria, which never passed to the heirs. The plaintiff is the party entitled to obtain restitution; the defendant, the husband and his heirs. In addition to the above, the wife has the actio hypothecaria, by virtue of her legal marriage, and also the actio in rem, against every possessor of the dotal property. The Donatio Propter Nuptias (or to employ the Byzantine name, the Antipherna), was an arrangement corresponding to the dos but of far less antiquity. The first notion we have of it is in a Constitution of Theodosius & Valentinius, where forfeiture of the donation is taken along with forfeiture of the dos, as a punishment for causeless divorce. Justinian says it is in name and really the same as dos, being a correlative contribution by the husband to the wife. Justinian gave the wife a real action to recover the property included in the gift. He says in his Institutes, that there is also another kind of donation inter vivos, unknown to the old jurists. It was called the donatio ante nuptias prenuptial gift), and implied as a tacit condition that it should not be binding till followed up by the marriage. It was called ante nuptias because it was accomplished before the marriage and after the celebration of the nuptials no such gift was bestowed. The Emperor Justinus, his father, seeing that the increase of doweries after marriage was allowed, was the first to permit by his Constitution that in such events the donatio ante nuptias might be increased also, even though the marriage had already taken place. But the name remained, though now unsuitable, for it was called prenuptial, while it thus received a post-nuptial increase. Justinian carefully suiting names to things, called it not ante nuptias, but propter nuptias, and put them on the same footing as dowries in this respect, that as dowries are not only increased but come into being when the marriage has already taken place, so too those gifts brought in propter nuptias may not only precede inarriage, but may, even after it is contracted, be both increased and settled. The wife has a legal right of mortgage to the same, and if the marriage be dissolved by fraud of the husband, the donation reverts to her. The custom has now, however, become obsolete. The children of the marriage had no interest in the donation any more than in the dos. C. 5, 318. The relations of property subsisting between husband and wife may be the subject of mutual contracts. The agreements by which this is effected are termed Pacta Dotalia; they do not require any particular form and may be concluded upon, before, at the time, or after the marriage; must not retain any thing repugnant to the aim and object of the marriage contract, nor be opposed to good morals, nor be contrary to the purport of the dos, so as to diminish or endanger the rights of either the husband or the wife in regard to it. The pacta must not exclude the right to competency, nor the claim for compensation, nor the right to the enjoyment of the fruits, nor the liability incurred for culpa, nor the deferring the legal period of restitution. All donations between husband and wife are void, and if made to any other person who is connected with husband by the bond of the patria potestas. Gifts only are void, not other acts of liberality. Donations are allowed that do not impoverish the donor, nor enrich the donee. Neither husband nor wife can institute against each other the Actio furti. Both husband and wife must strike out the element of theft and choose an action

proper and suitable to the circumstances of the case. To this important rule there are only two exceptions. Where the purloinment takes place at the very moment of a contemplated separation; in this case the Actio rerum amotarum is given. Where it occurred before marriage, and divorce subsequently takes place, the action of condictio furtiva revives. When husband or wife gives to the other a just cause of separation, the guilty party suffers a pecuniary penalty. The guilty wife loses her dos, so far as she might have reclaimed it after the dissolution of the marriage; where no dos has been constituted, she loses one-fourth of her property, the ownership of which goes to the children, the usufruct to the father. In case of the wife's adultery the penalty is increased to a third. The guilty husband loses the donatio propter nuptias, and when none has been constituted, he forfeits one-fourth of his property, in favor of his children, the mother having the enjoyment of the usufruct. When there are no children the property goes in both cases to the innocent husband or the innocent wife, as the case may be.

The penalty of a second marriage, or as it is termed, "Pana secundarum nuptiarum," on the part of the husband or wife, he or she sacrifices whatever he or she has received by virtue of the first marriage, whether by inheritance or some other beneficial source. The party of the second marriage loses also all property in that which he or she has inherited, or which he may inherit from a child ab intestatio, so far as it has been derived from the property of the deceased husband or wife. The property goes, in these cases, to the children of the first marriage, according to the principle regulating succession by intestacy. The party marrying a second time retains, however, the usufruct. The husband or wife entering upon a second marriage cannot give to the second spouse more than the minimum amount (inter vivos or mortis causa) reserved to a child of the first marriage. Whatever has been given in excess of this is divisible amongst the children of the first marriage. The Binubus or Binuba cannot revoke any gift made to the children of the first marriage, except when the child has made an attempt upon the life of the parent, or has actually outraged the parent, or caused the parent loss of property. The Binuba loses the guardianship and right of bringing up the child.

A woman who remarries within a year of the dissolution of her previous marriage, either by the death of her husband or by divorce, sacrifices in favor of the nearest relatives of her husband all she may have received from him. She cannot give more than onethird of her fortune to her second husband; she cannot acquire property either by gift or legacy, and can only inherit from relatives ab intestatio, as far as the third degree. Should there be children of the first marriage, in addition to those penalties, the general consequences of a second marriage take place.

In most of the barbarian nations the intended husband was bound to bestow on, or secure to his wife, a certain portion of property by way of dower. When there was no contract as to the amount, it was fixed, in some nations, at a certain sum. The wife, in general, was entitled to the enjoyment of her dower from the time of her marriage. By the early laws, the wife had absolute dominion over it; latterly she was restricted in the disposal of it by certain laws in favor of her children. Justinian by Novellae, 97, C. 1, and 127, C. 3, restricted the right which the widow had enjoyed by the old Roman laws, and this has been followed in the Code Napoleon, art. 1554. The dos or dower of the Germans differed from that of the Romans in this, that it was given by the husband to the

among the Franks was a species of partnership, in which each had their separate rights. The wife might sue or be sued in her own name, though it was usual for her to give to her husband a mandate authorizing him to conduct her affairs; but without such authority he could not interfere. All these regulations are Roman, and are continued with modifications in the Code Napoleon, art. 1984. In some nations every thing which the husband and wife jointly acquire during marriage was divided between them or their representatives, at its dissolution. The Ripuarians gave the wife or her representatives one-third, the Saxons the half. The Alemans allowed the widow to retain, besides her dower, all gifts made to her by her own family, and whatsoever she had brought from her father's house. Among the barbarians the widow, if she continued unmarried, might retain all gifts made to her by her deceased husband. The Visigoths seem to have allowed the husband and wife each to retain ownership of their whole property, but bringing the whole into community. Whatever they acquired, living together, they divided between each other.

The French law binds the husband and wife to be faithful, and help and support each other. A husband is bound to protect his wife, and the wife to obey her husband. The wife is bound to live with her husband and to accompany him wherever he may think proper to reside; and the husband must provide for his wife according to his means and station, with all the necessaries of life. A wife cannot sue in a civil action without the authority of her husband, even if she should carry on a business in her own name, or when she has property settled upon her, or when separate estates exist between the man and wife; nor can she give or receive gratuitously, sell, or mortgage, or purchase property without the consent of her husband; but the court of first instance has the power of overruling the husband if he should not consent. If the wife carries on a business distinct from her husband, she may, without his authority, bind herself for things which appertain to the business. The husband is bound also by her acts, unless their estates are separate. If a husband is convicted of felony, interdicted, or disappears, the wife cannot maintain an action nor contract, without the authority of the court of first instance. All general powers given by a husband to a wife, even by marriage settlement, are void, except those which relate to the administration of her own property. If the husband is a minor the authority of the court of first instance is required to enable the wife to contract or to maintain an action. A wife can make her will without the authority of her husband. By the Roman law a wife could not make her will if in the power of her father or in manum (as long as it existed) of her husband.

CUSTOM AS TO THE USE OF STREAMS.
PENNSYLVANIA SUPREME COURT MAY 3, 1880.
PENNSYLVANIA COAL Co. v. SANDERSON.

A coal mining company pumped from its mines water which
polluted a previously pure stream into which it found its
way. In an action for damages against the company by a
riparian owner on the stream, held, that the fact that coal
mining is an important industry would not relieve defend-
ants from liability and that they could not justify their ac-
tion upon the ground that it was the customary mode of
disposing of water pumped from mines in that region to
allow it to flow into the streams, there being a lack of the
necessary age to establish a general custom, and such'a cus-
tom would be unreasonable and unlawful.
CTION by J. Gardiner Sanderson and wife against
the Pennsylvania Coal Company to recover for
the injury done to a stream of water running through
plaintiffs (Sanderson's) grounds by the working of de-

fendant's colliery. In 1868 plaintiff named purchased the premises through which this stream ran and erected a house thereon. The stream was one of pure water running from a spring above the grounds. This stream constituted one of the inducements to plaintiff for purchasing, and the improvements on the place made by him, which included a fish pond, water pipes and dam for forcing the water into his house, cost about $80,000. Soon after the improvements were completed the defendants opened a colliery about three miles above plaintiff's grounds and commenced pumping the water therefrom, which water found its way without being directed by defendants into the stream in question. This water so polluted the stream as to render it unfit for drinking or washing and so injurious to the fish in plaintiff's ponds that they died, and so as to cause injury or destruction to the dam and pipes put down by plaintiffs. On the first trial of the case plaintiffs were nonsuited, but the nonsuit was reversed on appeal (5 Nor. 401; see, also, 18 Alb. L. J., 162). From a judgment in favor of plaintiffs defendants took a writ of error. Other facts as disclosed by the opinion. A. T. McClintock, 1. J. Post and Samuel Dickson, for plaintiffs in error.

A. Ricketts, for defendants in error.

GORDON, J. The material points in this case have been most fully and carefully discussed in the opinion delivered by our late lamented brother Woodward in this same case, when here before, and which may now be found in 5 Nor. 401. As that opinion has been faithfully followed in the court below, we are relieved of any extended examination of the case as now presented. Whether or not the injury complained of resulted from the act of the defendant in pumping deleterious mine water into the Meadow Brook was fairly submitted to the jury, and that body found that that was the immediate cause of the injury. When, in 1868, Mrs. Sanderson purchased her property on Meadow Brook, she found the water of this stream pure aud valuable for domestic purposes. Her right to have and use these waters as she found them is undoubted. This right, though of an incorporeal character, was as absolute 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. As then it has been the cause of the injury, why should it not be held to an account therefor? The 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 Commonwealth, the right of the plaintiff must yield to it. But this argument is fallacious in this, the mining operations of the defendant do not involve the public welfare, but are conducted purely for the purposes of private gain. Incidentally all lawful industries result in the general good; they are, however, not the less instituted and conducted for private gain, and are used and enjoyed as private rights over which the public has no control. It follows that none of them, however important, can justly claim the right to take and use the property of the citizen without compensation.

(2) It is urged that the customary mode of disposing of water pumped from the mines in the Lackawanna and Wyoming coal regions has been to allow it to flow into the adjacent natural watercourses. Of this proof was offered, and that for the purpose of showing a general custom thus to use the rivers, creeks and smaller streams of this part of the State, and, it may be added, so to destroy the rights of riparian owners. As a local custom or prescription, this has no application to the case in hand, for the colliery of the defendant appears to be the only one within the territory

drained by Meadow Brook, and the pollution of its waters has occurred since the plaintiff's purchase. As a general custom, it lacks the necessary age, for the beginning of deep coal mining in the regions above named is quite within the memory of men yet living. Wanting this it fails in a particular essential to the establishment of such a custom. Jones v. Wagner, 16 P. F. S. 429. But more fatal still to the defendant's pretension is the fact that the effort is thus to justify the disturbance of private property for the advancement of the private interests of the defendant corporation, and that, not under the plea of an ancient customary use, arising before the plaintiff acquired title, but of a general custom which would authorize the present injury or destruction of the rights of riparian owners. But a custom such as this would not only be unreasonable, but also unlawful, and therefore worthless. It is urged that mining cannot be carried on without this outflow of acidulous water, hence of necessity the neighboring streams must be polluted. This is true, and it is also true that coal mining would come to nothing without roads upon which to transport the coal after it is mined; therefore roads are necessary; but it does not follow that for such purpose the land of an adjacent owner may be taken, or his right of way incumbered, without compensation. If indeed the custom set up were to prevail, then, at least so far as coal mining companies are concerned, there would be an abrogation of the 8th section, art. 16 of the Constitution, which provides that "municipal and other corporations, invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured, or destroyed by the construction and enlargement of their works, highways, or improvements." Not only would we thus have a custom superior to the supreme law of the land, but one reaching even beyond the possible sovereignty of the State, in that it would empower private persons, for private purposes, to injure or destroy private property, and that without compensation. A custom such as this is radically bad, and cannot be sustained.

Judgment affirmed.

Paxson and Sterrett, JJ., dissent.

Sharswood, C. J., and Green, J., absent.

FELONIES UNDER FEDERAL LAWS.

UNITED STATES CIRCUIT COURT, W. D. TENNESSEE. JANUARY 31, 1880.

UNITED STATES V. COPPERSMITH.

A defendant indicted for making counterfeit coin is entitled to only three peremptory challenges of jurors under section 819 of the Revised Statutes. The offense is not a felony under any existing act of Congress. All offenses against the United States being statutory, they are not felonies if the punishment be less than capital, unless they are by the statute so declared to be, either in express terms or by necessary implication. In the criminal jurisprudence of the Federal law there are three distinct classes of felonies, not capitally punished. 1. Where the offense is declared by statute, expressly or impliedly, to be a felony. 2. Where Congress does not define an offense, but simply punishes it by its commonlaw name, and at common law it is a felony. 3. Where Congress adopts a State law as to an offense and by that law it is a felony.

Congress has power to create felonies or reduce commonlaw felonies to misdemeanors, but such gradation is inapplicable to our system of jurisprudence; and in the present state of legislation, to declare an offense a felony is brutum fulmen, except that it may incline the legislative mind to more severe punishment. In other respects it seems an advantage to the offender, for he then has ten challenges instead of three, and possibly may be entitled to be proceeded against only by indict ment and not by information.

INDICTMENT for counterfeiting. The facts appear in the opinion.

W. W. Murray, district attorney, and J. B. Clough, assistant district attorney, for the United States. George Gantt, for defendant.

HAMMOND. J. The defendant being on trial for counterfeiting the coin of the United States, has peremptorily challenged three of the jurors tendered to him, and claims the right to challenge another and any number to the extent of ten, under section 819 of the Revised Statutes. He insists that the offense of making counterfeit coin is a felony at common law and therefore a felony in the purview of that section; he also insists that being punishable by imprisoment at hard labor, which necessarily implies confinement in a penitentiary, it is a felony according to the ordinary acceptation of the term in American law; that Congress used the term in that sense in this statute, and did not intend to indicate capital offenses already provided for by the same section of the Revised Statutes.

Section 819, above referred to, is as follows: "When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges," etc.

It is apparent that it was here intended to designate by the term "any other felony," other offenses than capital offenses, for they are otherwise specially provided for by this section.

Prior to legislation by Congress this matter of peremptory challenges in the Federal courts was in some confusion until the Supreme Court declared that they might, by rule, adopt the State practice. United States v. Shackelford, 18 How. 588; United States v. Douglass, 2 Blatchf. 207; United States v. Reed, id. 435, 447, and note; United States v. Collingham, id. 470; United States v. Tallman, 10 id. 21; United States v. Devlin, 6 id. 71.

When we could resort to the State practice, it was generally found that legislation had accurately regulated the right of challenge by distinctly classifying offenses with such statutory definitions as left no room for doubt. But since Congress has legislated we can no longer look to the State laws for guidance, nor to the common law, but only to the acts of Congress themseives, which unfortunately have only increased the confusion by the use of an indefinite term. I am not advised of any reported case construing this section, nor of the practice in regard to it, except that it is said at the bar that heretofore in this district, ten challenges have not been allowed in any case where the offense charged was not, by the statute creating it, declared to be a felony. The first act of Congress, passed March 3, 1865 (13 Stats. 500), after providing for treason and capital offenses, as is done by this section 819, provided that "on the trial of any other offense in which the right of peremptory challenge now exists, the defendant shall be entitled to ten and the United States to two peremptory challenges." The criticism of Judge Conkling, in the fifth edition of his Treatise, page 632, on this act, demonstrates how indefinite were the terms used, and he concludes that the section was nugatory as to all crimes except treason and capital offenses; because the right of peremptory challenge, he says, only exists in cases of felony, and now nothing is felony except capital offenses. In this criticism the learned district judge of Oregon seems to concur, for he also declares the section nugatory. United States v. Randall, 1 Deady, 524, 548. Yet, strange to say, the act of June 8, 1972 (17 Stats. 282), substitutes this word

66

felony for the phrase in the act of 1865 which was thus condemned because it limited the right of peremptory challenges to cases of felony and thereby left it impossible to determine under the act of 1865 to what cases it should apply. Perhaps a proper construction of the act of March 3, 1865, taken in connection with the law as it then stood under the decision in the case of United States v. Shackelford, supra, and the act of 1840, would have been to look to the State practice to determine in what cases the right of peremptory challenge now exists," and to allow ten challenges in all such cases; for the State practice then furnished not only the rule as to number but the rule as to the kind of offense in which the right of peremptory challenge existed, as we have already seen. There would have been some certainty in this, but now there is no other course but to determine by the common law what Congress meant in this section of the Revised Statutes by the words "any other felony." If Congress uses a common-law term in defining a crime, or in any statute, we must look to the common law for a definition of the term used. 2 Abb. Prac. 171; Conk. Treatise, 178 (5th ed.); United States v. Palmer, 3 Wheat. 610; United States v. Wilson, Baldw. 78, 93; United States v. Barney, 5 Blatchf. 294, 296; United States v. Magill, 1 Wash. C. C. 463. The Massachusetts Code commissioners, many years ago, in enumerating felonies within the provisions of their Code, in a note, add that the meaning "of the word 'felony' (as by them defined), is limited to the use of the word in this Code, and is not to be confounded with the common-law signification of the same term, whatever that meaning may be, for it is a matter of no little difficulty to settle it." Report; Title Explanation of Terms cited 1 Hale's P. C. (A. D. 1847) 575, note.

The Supreme Court of Alabama said, in Harrison v. State, 55 Ala. 239, 241, that it is not easy to determine in all cases what are felonies and crimen falsi. "To predicate of an act," says the Supreme Court of Ohio, "that it is felonious, is simply to assert a legal conclusion as to the quality of the act; and unless the act charged, of itself, imports a felony, it is not made so by the application of this epithet. Indeed, the term felony has no distinct and well-defined meaning applicable to our system of criminal jurisprudence. In England it has a well known and extensive signification, and comprises every species of crime which at common law worked a forfeiture of goods and lands. But under our Criminal Code, the word 'felonious,' although occasionally used, expresses a signification no less vague and indefinite than the word 'criminal.'" Matthews v. State, 4 Ohio St. 539, 542. In the Constitution of Tennessee the words "criminal charge' are held to be synonymous with "crimes," which is said to mean, technically, "felonious" offenses. McGinnis v. State, 9 Humph. 43.

The term "felony " appears to have been long used to signify the degree or class of crime committed rather than the penal consequences of the forfeiture occasioned by the crime according to its original signification. 1 Archb. Cr. Pl. 1, note; 1 Russ. on Crimes, 43.

Capital punishment by no means enters into the true definition of felony. Strictly speaking the term comprised every species of crime which occasioned at common law the total forfeiture of either lands or goods, or both. That was the only test. Felonies by common law are such as either concern the taking away of life, or concern the taking away of goods, or concern the habitation, or concern the obstruction of the execution of justice in criminal and capital causes, as escapes, rescues, etc. 1 Hale's P. C. 411. These crimes were of such enormity that the common law punished them by forfeiture. 1. The offender's wife lost her dower. 2. His children became base and ignoble and his blood corrupted. 3. He forfeited his goods and chattels, lands and tenements.

The superadded punishment was either capital or otherwise according to the degree of guilt, that is, the turpitude of the offense. There were felonies not punishable with death, and on the other hand, there were offenses not felonies which were so punishable. However, the idea of felony was so generally connected with capital punishment, that erroneously, it came to be understood that all crimes punishable with death were felonies, and so, if a statute created a new offense and declared it a felony, but prescribed no punishment, by implication of law it was punishable with death. This has been changed by statute, and now where a felony is created and no punishment prescribed, it is transportation for seven years, or imprisonment, with or without hard labor, not exceeding two years, and for a second felony, transportation for life. 7 and 8 Geo. IV. The punishment for a misdemeanor at common law was fine or imprisonment, or both, unlimited, bot in the most aggravated cases seldom exceeding two years. Tomlin's Dict., title "Felony;" 4 Black. Com. 94; 3 Inst. 43; 4 Bacon's Abridg., tit. "Felony" and tit. "Forfeiture;" Viner's Abridg., tit. "Forfeiture;" 1 Hale's P. C. 411, 574; 1 Archb. Cr. Prac. 1 and note, and p. 185; 1 Russ. on Crimes, 42; 1 Bish. Cr. Law, $$ 580-590; U. S. v. Williams, 1 Cranch's C. C. 178; Adams v. Barrett, 5 Ga. 404, 412; State v. Dewer, 65 N. C. 572; United States v. Smith, 5 Wheat. 153, 159; United States v. Staats, 8 How. 41.

Tested by the common law then this term has no very exact and determinate meaning and can apply to no cases in this country except treason where limited forfeiture of estate is allowed. But technically that is a crime of a higher grade thau felony, although it imports also a felony. If it be conceded that capital punishment imports a felony there can be none, at common law, except capital crimes. But that test is untechnical and founded in error. It does not always apply, and it is as arbitrary to say that a crime punished capitally is a felony, as it is to say that one punished by imprisonment in the penitentiary is a felony. Our ancestors brought with them the common-law gradations of crime, as they stood in their day, and although they organized a government which is wholly destitute of a criminal common law, its influence has always prevailed to produce incongruities arising out of an attempt, even when creating new offenses, unknown to any law except our own peculiar system, to keep up its gradations of crime. The Supreme Court, in the case last cited, points out the distinction between the use of the word "felony" as descriptive of an offense, and as descriptive of the punishment; pronounces it the merest technicality and holds that where a statute creates an offense and declares it a felony it is not necessary to plead a felonious intent. Bouv. Dict., 'Feloniously." The court also speaks of "the moral degradation attaching to the punishment actually inflicted," and intimates that it is about all that is left to us of the common-law idea of felony. There is just as much of moral degradation in an offense called by the statute-makers a misdemeanor, if punished degradingly, as if with the same character of punishment they call it a felony.

In American law, forfeiture as a consequence of crime being generally abolished, the word "felony" has lost its original and characteristic meaning, and it is rather used to denote any high crime punishable by death or imprisonment. Burrill's Dict., tit. "Felony." The term is so interwoven with our criminal law that it should have a definition applicable to its present use; and this notion of moral degradation by confinement in the penitentiary has grown into a general understanding that it constitutes any offense a felony, just as, at common law, the idea of capital punishment became inseparably connected with that of felony. The e is therefore much force in the suggestion of counsel that since we cannot define this word, as used in this

statute, by the common law, it must be understood that Congress used it in this modern sense. Because, where the words of a statute construed technically would be inoperative, but construed according to their common signification would have a reasonable operation, the courts do sometimes adopt the latter construction. Yet, it will be found that this modern idea of felony has come into general use by force of State legislation on the subject, so far as it is legally established. From a very early day, and as a necessity, the State Legislatures have passed laws defining and enumerating felonies as those crimes punishable by confinement in the penitentiary; and this has come to be the law in nearly every State. In Tennessee the law of 1829 elaborately enumerates felonies, and punishes them with hard labor in the jail or penitentiary, and the act of 1873, ch. 57, makes all crimes, punishable by confinement in the penitentiary, felonies, and so defines the term. C. & N. 316; Acts of 1873, p. 87. We have no such legislation by Congress; section 5391 of the Revised Statutes is limited to offenses committed in places ceded to the United States, and adopts the State law as to such offenses if not otherwise provided for; and of course, in such cases, if the offense is a felony by State law, it becomes a felony by this section.

There is no uniformity in the legislation of Congress as to the punishment of criminal offenses, and we often find statutory misdemeanors punished more severely than statutory felonies; and while some of the statutes prescribe hard labor as a part of the punishment, when necessarily the confinement must be in some prison where it can be so enforced, on the other hand the simple imprisonment prescribed may become confinement with hard labor by selecting a prison where it is a part of the discipline; so that we often find prisoners convicted of the same offense and sentenced to the same punishment, undergoing in fact different punishments. Ex parte Karstendick, 93 U. S. 396. In this case it is held that it is not the intention of our statutes to limit confinement in the penitentiary to those offenses where hard labor is imposed. Rev. Stats., § 5539. We find it, therefore, impracticable to apply any such text as that prescribed by the State legislation above mentioned, as the legislation of Congress now stands, to the determination of the meaning of the word "felony" as used in section 819 now under consideration.

But aside from this, nothing is better settled than that we cannot look to the State laws, in the criminal jurisprudence of the United States, for the characteristic elements which go to make up an offense, and enter into it as a part of its legal status; nor to the common law, nor even to the character of the punishment. The Federal courts take no cognizance of State statutes in criminal proceedings, and deduce no criminal jurisdiction from the common law, which has no force, directly or indirectly, to make an act an offense not made so by Congress. Though in all matters respecting the accusation and trial of offenders, not otherwise provided for, we are referred to the laws and usages of the State when the judicial system was organized. 1 Abb. Prac. 197; 2 id. 171; U. S. v. Reid, 12 How. 361; U. S. v. Lancaster, 2 McLean, 431; U. S. v. Peterson, 1 Wood. & M. 306, 309; U. S. v. Shepherd, 1 Hughes, 520, 522; U. S. v. Taylor, id. 514, 517; U. S. v. Maxwell, 3 Dill. 275, 276; U. S. v. Shepherd, 1 Abb. 431; U. S. v. Cross, 1 McArth. 149; U. S. v. Black, 1 Sow. 211; U. S. v. Ebert, 1 Cent. L. J. 205; U. S. v. Williams, 1 Cliff. 5; U. S. v. Barney, 5 Blatchf. 294; U. S. v. Watkins, 3 Cr. C. C. 441, 451; U. S. v. Hammond, 2 Woods, 197; U. S. v. McGill, 1 Wash. C. C. 463.

In those cases where the State laws have been adopted as in section 5391 Revised Statutes, they stand as if the act of Congress had defined the offenses in the very