Page:Federal Reporter, 1st Series, Volume 9.djvu/904

Rh changed? Section 5326, Rev. St., declares that "no conviction or judgment shall work corruption of blood or any forfeiture of estate." Again, under the head of crimen falsi, offences were infamous which were followed with disqualification, as witnesses or jurors. Many offences which, under the English system, involved such consequences do not do so now under many American codes, and especially under the federal laws. So far as observation goes there are but two offences expressly denounced by federal statutes as infamous within the meaning of the common-law definition, yet there are disqualifications for offices in a few others.

Shall all offences, then, involving moral turpitude, be held technically infamous? What shall be the test, the punishment, or the quality of the act? Most modern jurists agree that the nature of the punishment is not the criterion, and yet many of them attempt to draw a sharp distinction at the walls of the penitentiary. If the nature of the punishment does not affect the question, why is it that they make imprisonment in the penitentiary infamous and not imprisonment in the common jail? All familiar with federal statutes and practice know that persons convicted can, in many instances, be sentenced to imprisonment, with or without hard labor, either in a jail or penitentiary.

It is very diffieult to reconcile the cases, or to reach a definite conclusion therefrom. In this circuit it has lately been held that the punishment does not give character to the offence, although the later decisions are not in accord with what theretofore had been held otherwise. If the extent or place of punishment does not affect the question, how is it that the walls of the penitentiary can make a dividing line between infamous and non-infamous crimes? It must be confessed that the rulings of this circuit for more than 20 years on this subject were overthrown by the Maxwell and other cases, and properly so. Hence, the test is not where the criminal may be imprisoned, nor what at common law would have been the designation of the offence, but what the federal statute prescribes. It is very difficult to understand logically what rule should be observed, in the light of many decisions. Shall the courts pronounce that every felony is infamous, merely because the United States statute denominates a specific offence a felony, when no such offence was known to the common law, and consequently could not be infamous when the constitution was adopted? On the other hand, if congress prescribes an offence and does not denominate it a felony, and yet the very nature of the offence is one of moral turpitude, but the punishment not