Page:Federal Reporter, 1st Series, Volume 4.djvu/216

 203 FEDERAL EBPOBTEE. �with death were felonies; and so, if a statute created a new offence and declared it a felony, but prescribed no punish- ment, 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 exceedingtwo years; and for a second felony, transporta- tion for life. 7 and 8 Geo. IV. The punishment for a mis- demeanor at common law was fine or imprisonment, or both, unlimited, but in the most aggravated cases seldom exceed- ing two years. Tomlin's Dict. title "Felony;" 4 Black. Com. 94; 3 Inst. 43; 4 Bacon's Abridg. title "Felony" and title "Forfeiture;" Viner's Abridg. title "Forfeiture;" 1 Hale's P. C. 411,574; 1 Arehb.Cr.Pr.l, andnote, andp. 185; iPiuss.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 y. Deiver, 65 N. C. 572; U. S. v. Smith, 5 Wheat. 153, 159; U. S. Y. 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 than felony, although it imports also 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 ap- ply, and it is as arbitrary to say that a crime punished capi- tally is a felony, as it is to say that one punished by impris- onment in the penitentiary ia a felony. Our aneestors brought with them the common-law gradations of crime, as they stood in their day, and although they organized a gov- ernment which is wholiy destitute of a criminal common law, its influence bas always prevailed to producd incongruities arising out of an attempt, even when creating new offences, unknown to any law except our own peouliar 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 offence, and as descriptive ����