Page:Federal Reporter, 1st Series, Volume 9.djvu/906

 UNITED STATES U. WYNN. 891 �used, if they We coiuraon-lawterms, to the common law, yet they could not enlarge the punishment beyond -what the federal sta tutes prescribe. Similar offences may have been capital under the British law. Yet congress may have denounced therefor imprisonment merely for a limited term, or merely a fine. How, then, is the offence to be designated, — according to the federal statutes, which must alone govern, or aocording to the common law, which is no part of the federal system ? �Without pursuing further this abatract line of thought, which leads to a reductio ad absurdum, it may be well to state Buocinotly the views of this conrt. At the adoption of the United States constitution, and the amendments thereto, inasmach as no federal offences had been defined, it was prescribed that whenever congress should declare certain acts an offence, and attach thereto capital punishments or infamy, the alleged offender should not be brought to trial except after indictment. �The nature, functions, and protective duties of a grand jury have been often defined and enforced by this court. But the question under consideration is, when is the interposition of such a jury essen- tial? It may be stated that the following rules should prevail: �(1) In the absence of a federal statuts there is no offence oogniza- ble by United States courts. �(2) When congress bas declared an offence, it is what congress has designated it, and not what any other System of jurisprudence or foreign statutes may prescribe. �(3) If the congressional statute prescribes infamy the offence is infamous. �(4) If congress does, without express provisions as to infaruy, make the offence a felony the offence must be prosecuted as infa- mous and by indictment. �Under this head it must be observed that common-law felonies, or offences of like nature, are not within the purview of the constitution unless congress so enacts. The many offences under the British law, with their barbarous consequences, were not, and in some instances (notably, treason) could not be, federal law. By recognized decisions and definitions all felonies were infamous, but as there were no fel- onies here until congress so enacted, whatever offences congress de- nounced, not as felonies, but as misdemeanors, could not fall within the description of infamous unless, independent of the technical defi- nition of "felony," they fell within the rule of infamous punishments, so expressly denounced ; or, possibly, from the quality or nature of ��� �