Page:Federal Reporter, 1st Series, Volume 9.djvu/908

 BNITED STATES V, WYNN. 893 �to be considered, not as wbat congress enaeted, but as what lik& offences by analogy were considered at common law or by state stat- utes. At this point the logical diffieulty occurs. If congress alone can say what sball be an offence under the United States laws and prescribe the punishment therefor, how can the courts go beyond such congressional enaotments ? What, then, independent of felonies, shall be considered in the United States courts infamous crimes, within the meaning of the fifth amendaient of the constitution? The answer should be, such offences and such only as congress bas declared to be infamous. Whence does a United States court derive authority in crim- inal cases to go beyond the United States statutes ? Hence cases not declared felonies or infamous can be prosecuted by information. It is trne that congress in its wisdom bas chosen to denominate many trivial offences, involving no moral turpitude, felonies, and not so to denom- inate many of the gravest crimes ; yet the courts are bound tliereby. In these, as in many other matters, courts can only say : Sic ita lex tcripta est. �After a careful examination of the many authorities cited, English and American, it seems that the tiue solution of the vexed question must be found in the fact that there are no federal offences except such as congress prescribes, and that if congress declares an offence capital or infamous, the aecused bas a right to exact the intervention of a grand jury. This rule is to be taken with the qualification that all declared felonies are to be construed infamous. If congress does not choose to declare an offence' a felony, or make it infamous, it cannot be so considered in a United States court. �These views may not be in accord with those expressed by some courtsy and especially by those who decide that the quality or char- acter of the offence is or is not to be determined by the punishment. After felonies under the British law had been specifically defined as determinable solelyby the consequent punishment, the English courts adopted another rule, which bas been generally followed in this country, whereby the nature of the punishment was held not to de- termine the character of the offence. Still the struggle remains under federal statutes whether, in the absence of a designation of the offence as a felony or misdemeanor, the court should look to the prescribed punishment to ascertain the true classification. Many acts of congress prescribe hard labor or imprisonment in the peniten- tiary, with or without hard labor for a defined term, or imprison- ment solely, or fine and imprisonment, etc., in moat instances leav- ��� �