Page:Federal Reporter, 1st Series, Volume 9.djvu/905

, can -the court say it is infanaous, to be pursued only through indictments ? �It will be seen that great embarrassments exist, which have per- plexed the. courts, arising not from the constitutional provision alone, but from United States statqtes. �Only two oiiences have deaominated expressly against them dis- qualifications whicb are within the technical definition infamous, unless all felonies are to be so considered, and certain offenees under the election laws pertaining to disqualifications for office. It may be very difficult to reconcile cases with right reason on this subject, and soch an efftfrt will be foreborne. Without criticising such cases, and analyzing them it raay be wiser to, state geuerally th« conclusions reached, and to give the elemental thoughts on which such conclusions rest. �As at the date of the constitution there were no offenees under the federal law, with the possible exceptions named, is not the character of each offence thereafter prescribed to be determined solely by the statute? .Within recognized rules a felony is infamous, and in the absence of such a designation the offence is not a felony. Hence, if an offence against the United States is defined, and the same is not denominated a felony, and no infamous punishment is denouuced, how can -a court decide that offence to be without the constitutional provision? Was it the purpose of the constitution to make all offenees that congress might thereafter prescribe, to take their quality, not from congressional legislation, but from the common law ? If so, was not thepower of congress restricted as to offenees not known to the common law ? So far as their penal consequences might extend, — that is, if congress enacted that certain defined acts should be an offence against the United States, and attached thereto consequences which were infa>mous,— were they not to be so, although there was no common-law rule on thesubject? In other words, could not congres» declare what offenees it enacted infamous or non-infamous, as it may deeim wise ? �This suggestion leads up to the main inquiry whether congress was inhibited from making any offence a felony or infamous which the common law or British statutes did not recognize as such. The mere statement of the proposition, shows its absurdity, for none of the common-law or statutory offenees (British) were United States offenees. Whatever congress might enact thereafter would take its character, quality, and punishment solely from the congressional enactment. Although courts would look for the definition of terms ��� �