The provision of the Fifth Amendment that no one shall be held to trial for a criminal offense unless on a presentment or indictment of a grand jury, is expressly limited to capital or other infamous crimes.30 It would seem that there is no hard and fast definition, in American law at least, of an "infamous crime," each case having thus to be decided on its merits. Possibly the best general discussion of the meaning of the term is, however, that of the court in Ex parte Wilson,31 where it is said: "Nor can we accede to the proposition which has been sometimes maintained, that no crime is infamous, within the meaning of the Fifth Amendment, that has not been so declared by Congress.32 The purpose of the Amendment was to limit the powers of the legislature, as well as of the prosecuting officers of the United States. We are not indeed disposed to deny that a crime, to the conviction and punishment of which Congress has superadded a disqualification to hold office, is thereby made infamous.33 But the Constitution protecting everyone from being prosecuted, without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of Congress is needed to secure, or competent to defeat, the constitutional safeguard. The remaining question to be considered is whether imprisonment at hard labor for a term of years is an infamous punishment. Infamous punishments cannot be limited to those punishments which are cruel or unusual; because, by the Seventh Amendment of the Constitution, 'cruel and unusual punishments' are wholly forbidden, and cannot therefore be lawfully inflicted even in cases of convictions upon indictments duly presented by a grand jury. . . . What punishments may be considered as infamous may be affected by the changes of public opinion from one age to another. In former times, being put in the stocks was not considered as necessarily infamous. And by the first Judiciary Act of the United States, whipping was classed with moderate fines and short terms of imprisonment in limiting the criminal jurisdiction of the District Courts to cases 'where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted.' (Act of September 24, 1789, chap. 20. § 9; 1 Stat. at L. 77.) But at the present day either stocks or whipping might be thought an infamous punishment. For more than a century, imprisonment at hard labor in the state prison or penitentiary or other institution has been considered an infamous punishment in England and America. . . . Deciding nothing beyond what is required by the facts of the case before us, our judgment is that a crime punishable by imprisonment for a term of years at hard labor is an infamous crime, within the meaning of the Fifth Amendment of the Constitution; and that the District Court, in holding the petitioner to answer for such a crime, and sentencing him to such imprisonment, without indictment by a grand jury, exceeded its jurisdiction, and he is therefore entitled to be discharged."

29 127 U. S. 540; 8 Sup. Ct. Rep. 1301; 32 L. ed. 223.

30 "Cases arising in the land or naval forces, or in the militia, when in actual service in time of war and public danger" are excepted from the grand jury requirement.

31 114 U. S. 417; 5 Sup. Ct. Rep. 935; 29 L. ed. 89.

32 Citing United States V. Wynn, 8 McCrary. 266; United States v. Petit, II Fed. Ren. 58; United States v. Cross. 1 MacArthur. 149.

32 United States v. Waddell, 112 U. S. 76; 5 Sup. Ct. Rep. 35; 28 L. ed. 673.

The practical construction which the cases have put upon the constitutional provision with reference to indictments has been that there must be an indictment in every case in which the imprisonment may be for more than one year, inasmuch as by Section 5541 of the Revised Statutes it is provided that whenever a person is sentenced to more than one year's imprisonment he may be required to serve the sentence in a penitentiary. By the provision of Section 335 of the act of March 4, 1900, revising, amending and codifying the penal laws of the United States, it is declared that "all offenses which may be punished by death, or imprisonment for a term exceeding one year, shall be deemed felonies. All other offenses shall be deemed misdemeanors."