A Letter on the Improvement of Procedure
573
enacted by Congress after several years of new code, there is a curious incongruity in its consideration, and approved by the President, re-enactment of section 5390 of the Revised notwithstanding his observations at Chicago. Statutes; but I have no occasion in this At the common law in England, all crimes communication to observe on this fact, involving the penalty of life with confiscation except to express my gratification that it is of estates, and perhaps some others, were not chargeable to the courts. The President drops into strengthening an known as felonies. Statutory crimes and minor offenses were known as misdemeanors. erroneous impression which exists to a certain As all offenses which can be prosecuted in the extent, when he says: "We must make it so federal courts are wholly statutory, and as that the poor man will have as nearly as the common law forfeitures of estates are possible the same opportunity in litigating as prohibited by the Constitution, and the the rich man; and, under present conditions, offenses punished by death are very few, and ashamed as we may be of it, this is not the fact." It seems to me impossible that any as the Constitution makes no general distinc tion between felonies and misdemeanors, but careful observer of the ordinary course of only with reference to "high crimes and mis litigation should hold an opinion of this kind. demeanors," there was no occasion for any By and large in the courts the poor man has extensive provisions in the federal statutes as the advantage of the rich man, especially to felonies. It is true the Constitution uses of rich corporations. This comes from the the word felony with regard to the privileges human tendency which underlies the courts, of members of Congress; but this is in an inci and was well exhibited by Lord Eldon when dental manner, and perhaps only with reference he said that a plaintiff suing in forma pauperis, to the laws of the various states. It also uses who had applied for a rehearing, had already been given five rehearings, but that, as he the word with reference to interstate extradi tion; but there it clearly has relation to state was a poor man, he would give him another. laws only. Nevertheless, Congress long since In view of this impression what becomes of provided that, on the trial of a capital offense, the alleged failure in criminal proceedings? a prisoner should be entitled to twenty peremp The prosecutor, that is, the United States or tory challenges; "on the trial of any other the state, has all the wealth of the entire felony" to ten; in all other cases, of course people behind it; and yet, according to a too common impression, it is always at a great including misdemeanors, to only three. What ever might have been the attitude of the disadvantage. Whatever disadvantages there federal courts aside from this, it became are come plainly from the people themselves, necessary, in view of this, that they should and in no way from the existing judicial ascertain what are felonies within the mean system. One of the evils in this direction is ing of this statutory provision. Of course, they emphatically pointed out by the President, fell back upon the common law definitions; when he says that the popular expression in but even this left the great majority of offenses many sections refuses the judges sufficient which are triable in the federal courts to be power in the trial of questions of fact; in regarded as mere misdemeanors, as to which which sections he might have included the the number of peremptory challenges is only conservative state of Maine. A more serious difficulty is that the people three. Not only on account of the increased number of such challenges, but for other might make judicial positions sufficiently reasons, offenses which have been, or may be, attractive in all respects to induce the leaders determined to be felonies within the meaning of the bar to be always ready to accept them, of the statutes of the United States, are as they always are in England, where the accompanied with greater difficulties in pro judges, with reference to fully two-thirds of cedure than misdemeanors. Nevertheless, the the reported cases, decide them on the spot, new code has classed all offenses against the and decide them intelligently and with suffi federal laws punishable by more than a year's cient citation of authorities, although, of imprisonment as felonies, thus, by a single course, not always absolutely correctly. The sweep, creating, as will be found, more embar people might, also, which they are very far rassments for the federal courts, and greater from doing, employ to protect their interests possibilities of failure, than come from almost > the best legal talent of the locality involved. any other statute of a general character passed The people might also refrain from breaking up into fragments the active power of pros by Congress. In connection with this provision of the ecuting criminals, by refraining from dividing
