Page:Federal Reporter, 1st Series, Volume 4.djvu/220

 206 FBDBBÀL BBPÔBTBB. �clànse of Ihe section is nugatory. The authorities cited show that congress has the undoubted power to ereate felonies by legislation operating within the limitations of its jurisdiction over crimes, and that from time immemorial legislatures hav- ing general jurisdiction over oriminal offences have added fel- onies to the common-law list. U. S. v. Tynen, 11 Wall. 88. Statutes ereate felonies either by declaring offences to be fel- onies in express terms, or impliedly, as in the anoient stat- utes, by enacting that the defendant sh'ould have judgment of life and member where the word "felony" isomitted, orwhere the statute says an act under particular circumstances shall be deemed to have been feloniobsly committed. 1 Arch. Cr. Pr. 1, and note; 1 Euss, on Crimes, 43; and authorities above cited. Now, where the common law operates, this declara- tion, express or implied, entailed the consequences of for- feiture, and if the statute fixed no punishment there was Buperadded by the anoient law the penalty of death, and now in England transportation, and in our American states con- finement in the penitentiary. But it is manifest that the jurisprudence of the United States, as long as section 6326 of the Eevised Statutes and other prohibitions of forfeiture of estate and corruption of blood'as a punishment for crime continues to be the law, and as long as congress adopts no general legislation punishing felonies as such, either capi- tally or otherwise, the declaration that an offence shall be a felony in an act of congress is merely brutum fuimen, except so far as it inclines the legislative mind to affix a more severo penalty for the commission of the offence. Notwithstanding this, however, it has been, until recent years, the constant habit of congress to declare offences created by it either fel- onies or misdemeanors in express terms, or to leave them to be misdemeanors by making no declaration on the subject. There is no doubt that offences are felonies when so declared to be, and the accused is entitled in such cases, where not punished capitally, to 10 challenges under this section 819, and this is about the only substantive effect such a declara- ition has, unless it be that it further gives the accused the right to be proceeded against only by indictment under the ����