SECTION 323. The manner of inflicting the punishment of Death death shall be by hanging.

This section is the same as U. S. Rev. Sts. § 5325. This

does not prevent an organized Territory from providing a different form of death penalty. Wilkerson v. Utah, 99 U.S. 130, 25 L. ed. 345.

penalty by hanging

SECTION 324. No conviction or judgment shall work cor- Corruption ruption of blood or any forfeiture of estate.

This section is the same as U. S. Rev. Sts. § 5326. United States v. Coppersmith, 4 F. R. 198, 201, 10 Rep. 517.

SECTION 325. The punishment of whipping and of standing in the pillory shall not be inflicted.

This section is the same as U. S. Rev. Sts. § 5327. In re Birdsong, 39 F. R. 599.

of blood and forfeiture of estate excluded

Whipping and pillory abolished

Jurisdiction

of State courts

SECTION 326. Nothing in this Title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.

This section is the same as U. S. Rev. Sts. § 5328.

United States v. Gibson, 47 F. R. 833; Ex parte Ballinger, 88 Id. 781, 5 Hughes, 387. The same act may be an offense against both State and United States. Cross v. North Carolina, 132 U. S. 131, 33 L. ed. 287; New York v. Eno, 155 Id. 89, 39 L. ed. 80; In re Eno, 54 F. R. 669; In re Loney, 134 U. S. 372, 33 L. ed. 949, 38 F. R. 101; Pettibone v. United States, 148 U. S. 197, 209, 37 L. ed. 419; Sexton v. California, 189 U. S. 319, 47 L. ed. 833; United States v. Lackey, 99 F. R. 952; People v. Welch, 141 N. Y. 266, 74 Hun, 474; Hoke v. People, 122 Ill. 511; In re Murphy, 5 Wyo. 297, 306. See also Fox v. Ohio, 5 How. 410. Congress may exclude the jurisdiction of the State courts from offenses within the power of Congress to punish, but in many cases it has not done so, as in passing counterfeit money. Ex parte Geisler, 50 F. R. 411, 4 Woods, 381. Offenses against the national bank laws are punishable in the Federal courts exclusively. Cross v. North Carolina 132 U. S. 131, 33 L. ed. 287; New York v. Eno, 155 Id. 89, 39 L. ed. 80; In re Eno, 54 F. R. 669; In re Loney, 38 Id. 101, 134 U. S. 372, 33 L. ed. 949; Ex parte Houghton, 7 F. R. 657, 8 Id. 897, 24 Alb. L. J. 145, 2 Crim. L. Mag. 759. A Federal official cannot be prosecuted in the State courts for acts done in his official capacity. Ohio v. Thomas, 173 U. S. 276, 43 L. ed. 699, 87 F. R. 453; In re Waite, 81 Id. 359. He may raise the question on a writ of habeas corpus. Id. But a Federal official may be arrested by the State authorities while in the performance of his duties, provided the arrest is not made for the purpose of interfering with his duties and the act is not part of them. In re Miller, 42 F. R. 307. A pilot arrested by the State authorities for manslaughter, the death being caused by a collision of boats due to the pilot's negligence,

cannot raise the question of jurisdiction by habeas corpus, Jurisdic

but must sue out a writ of error. In re Welch, 57 F. R. 576. As the punishment of perjury belongs peculiarly to the government in whose tribunals the proceeding is had, a State court has no jurisdiction of this offense when committed in an examination before a commissioner under the Bankruptcy Act, or in making an affidavit under Acts of Congress relating to public lands, or in testifying by deposition in the contested election of a member of Congress; but as to elections, the State courts appear to have concurrent power with those of the United States to punish fraudulent voting for representatives in Congress, as they clearly have in regard to votes for presidential electors. In re Loney, 134 U. S. 372, 33 L. ed. 949, 38 F. R. 101; In re Green, 134 U. S. 377, 33 L. ed. 951; McPherson v. Blacker, 146 Id. 1, 35, 36 L. ed. 869. While the jurisdiction of the Federal courts does not embrace common-law offences, these courts resort to the common law for the definition of terms by which offenses are designated. United States v. Eaton, 144 U. S. 677, 36 L. ed. 591; Pettibone v. United States, 148 Id. 197, 203, 37 L. ed. 419; 20 A. G. Op. 590.

tion of State courts

SECTION 327. Whenever, by the judgment of any court or Pardoning judicial officer of the United States, in any criminal proceed- power ing, any person is sentenced to two kinds of punishment, the one pecuniary and the other corporal, the President shall have full discretionary power to pardon or remit, in whole or in part, either one of the two kinds, without, in any manner, impairing the legal validity of the other kind, or of any portion of either kind, not pardoned or remitted.

This section is the same as U. S. Rev. Sts. § 5330.

If one, convicted of crime and sentenced to pay a fine, is granted a full and unconditional pardon, after payment of the fine, but before the money has been covered into the Treasury, the fine should be restored to him though the pardon does not express words of restitution. 16 A. G. Op. 1. If the money has reached the Treasury, and rights in favor of third

Pardoning persons have attached, the person pardoned cannot claim a power restitution of the fine. 8 A. G. Op. 281; 10 Id. 1; Knote v. United States, 95 U. S. 149, 24 L. ed. 442. The fine may be remitted after the death of the offender. 11 A. G. Op. 35. See also 14 Id. 124. Without congressional action the President has constitutional power to issue a general pardon or amnesty to classes of criminals. 20 A. G. Op. 330, 668. As to re-enfranchisement by pardon see 9 A. G. Op. 478. The President may pardon one imprisoned for contempt of court. 19 A. G. Op. 476. But, in the absence of statute, he has no authority to remove a convict from one prison to another. Id. 377.

Indians

certain

crimes

SECTION 328. All Indians committing against the person committing or property of another Indian or other person any of the following crimes, namely — murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, arson, burglary, and larceny, within any Territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the laws of such Territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner and shall be subject to the same penalties as are all other persons charged with the commission of said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases. And all such Indians committing any of the above-named crimes against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and be subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States: Provided, That any Indian who shall commit the offense of rape upon any female Indian within the limits of any Indian reservation shall be imprisoned at the discretion of the court.

This section is founded on the Acts of March 3, 1885, c. 341, § 9 (23 St. 385), and of Jan. 15, 1897, c. 29, § 5 (29 St. 487). See § 1 of the last-named Act. The words "assault with a dangerous weapon," the word "named" before

'crimes" in the second sentence, and the words "upon any Indians female Indian" in the last sentence, are inserted. committing certain

See § 329. Gon-Shay-Ee, petitioner, 130 U. S. 343, 32 L. crimes ed. 973; In re Wilson, 140 Id. 575, 35 L. ed. 513; Famous Smith v. United States, 151 Id. 50, 38 L. ed. 67; Ward v. Race Horse, 163 Id. 504, 41 L. ed. 244; United States v. Berry, 4 F. R. 779; United States v. Martin, 14 Id. 817; In re Sah Quah, 31 Id. 327, 331; United States v. Barnaby, 51 Id. 20; Good Shot v. United States, 104 Id. 257; United States v. Monte, 3 New Mex. 173; 17 A. G. Op. 567. This section is constitutional. United States v. Kagama, 118 U. S. 375, 30 L. ed. 228; United States v. Thomas, 151 Id. 577, 38 L. ed. 276, 47 F. R. 488. It applies only to Indians. Westmoreland v. United States, 155 U. S. 545, 39 L. ed. 255.

"Indians." The legitimate son of a negro father by an Indian mother is not an Indian. United States v. Ward, 42 F. R. 320. But see United States v. Sanders, Hempst. 483, 27 Fed. Cas. 950, holding that the child follows the mother. Indians holding allotted lands in severalty under the general Act of 1887 in a reservation within a State are not subject to this section but to the State courts. Matter of Heff, 197 U. S. 488, 49 L. ed. 848; United States v. Kiya, 126 F. R. 879; State v. Williams, 13 Wash. 335; contra, State v. Columbia George, 39 Or. 127. The conviction hereunder of an Indian for an offence committed on an Indian reservation within a State is a conclusive adjudication that he is a nonallotted Indian. Ex parte Savage, 158 F. R. 205. By the Act of May 8, 1906, c. 2348, 34 Stat. 182, the Act of 1887 was amended giving the United States exclusive jurisdiction over allotted Indians. This section applies to all Indians except those made by Congress subject to State laws. United States v. Celestine, 215 U. S. 278. The offenses here enumerated are the only ones for which tribal Indians are punishable in the Federal courts under the present laws. In re Mayfield, 141 U. S. 107, 35 L. ed. 635; United States v. King, 81 F. R. 625; Ex parte