Original Crimes: What were Federal Crimes in 1789, and Reply to Professor Kerr

I blogged a bit yesterday about what exactly was considered a federal crime in 1789 (see here and here). I argued that beyond certain crimes according to enumerated powers (securities, currency, etc), there could not be any general federal crimes.

I was pleased to see one of my favorite bloggers, and all-around nice guy, Orin Kerr, visited my comment thread.  Orin wrote:

The first set of federal crimes (that I know of) that Congress passed was 1 Stat. 112, enacted April 30, 1790. You should read Chief Justice Marshall’s opinion United States v. Wiltberger (1820) for an example of one of these laws: http://supreme.justia.com/us/18/76/case.html I don’t think it occurred to anyone at the time that such laws exceeded Congress’s commerce clause power.

Corey Carpenter, a contributor to Josh Blogs, replied:

I did a quick reading of the link you posted, and it seems that the 1 Stat. 112 particularly concerns crimes committed in places where only the federal government has jurisdiction, i.e. the high seas and federal land as opposed to a general policing power (and treason)

I just skimmed through Wiltberger, and it deals with manslaughter on the high seas, a federal offense.

All of the provisions of 1 Stat. 112 (see Library of Congress, and enter page 112) deal with matters clearly in the province of the federal government, and not traditional common law crimes.

The Federalism blog describes the crimes as such:

Sections 1 & 2 punish treason against the United States.  Id. at 112.  Sections 3 & 7 do not punish the state crimes of murder or manslauther.  Rather, it only criminalizes murders committed in “any place *** under the sole and exclusive jurisdiction of the United States, ”  id. at 113, and Section 5 punishes the theft from the federal government the body of an executed criminal.  Id.  Section 6 imposes an affirmative duty on a witness to certain listed crimes against the United States to relay his knowledge to the police.  Id.  Section 7 covers arson, but again, only against a building “under the sole and exclusive jurisdiction of the United States.”  Id.  Section 9-13 define and punish crimes on the high seas and rivers. Id. at 114-115.  Section 14 criminalizes counterfeiting.  Id. at 115.  Section 15 punishes acts affecting an official paper of a federal court.  Id. at 115-116.  Sections 16 & 17 punish theft-related acts occurring on any place under the “sole and exclusive jurisdiction of the United States.”  Id. at 116. Sections 18-20 cover perjury committed in federal court.  Id. at 116-117.  Section 21 covers bribes against federal officials.  Id. at 117.  Section 22 criminalizes resisting arrest, where a federal official is the arresting officer.  Id.  Finally, Section 28 punishes violence against persons under the protection of the United States. Id. at 118.

So perhaps I should refine my initial inquiry. When did the Federal Government began criminalizing matters that were historically left to state prosecutions, namely the common law crimes, that had nothing to do with federal jurisdiction or federal property? And if this change predated the New Deal and the transformation of the commerce clause, on what enumerated power did the federal Government base this authority?

Perhaps Professor Kerr will open a thread at Volokh? 🙂 Or maybe I’ll just buy him a beer.


3 Responses to “Original Crimes: What were Federal Crimes in 1789, and Reply to Professor Kerr”

  1. troll_dc2 Says:

    I do not know the answer to your question, but it might be interesting to see a list of federal crimes from, say, the 1820s or so to see whether the statutory law had moved beyond the bare minimums reflecting a strict reading of the Constitution. If not, how about the 1870s or some other pre-New Deal period? It would be interesting to see when the expansion process began, what caused it to happen, and whether anyone complained about its questionable constitutionality. At some point, I would think, the Supreme Court would have necessarily had to issue some sort of ruling on the issue. Perhaps a criminal-law professor who reads this blog could be useful here.

  2. Orin Kerr Says:


    I recommend reading two pre-New Deal Commerce Clause cases:

    1) Hoke v. United States (1913), which upheld the White Slave Traffic Act of 1910:

    2) Westfall v. United States, 274 U.S. 256, 259 (1927), which upheld a 1917 federal criminal law punishing fraud on a state bank that had joined the federal reserve system, even if the fraud had nothing to do with federal funds.

  3. Josh Blackman Says:

    I continued this thread with a new post on my new blog http://joshblackman.com/blog/?p=2440

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