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.

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But if there were no federal crimes, why would we need the 4th, 5th, and 6th amendments?

I previously blogged about what would be a federal crime in 1787. I conclude that for the most part, there could not be any.

Corey C, a bright eyed, blue haired 1L at George Mason law, posed a fantastic question.

If there were no federal crimes, why would the Constitution have needed the 4th, 5th, and 6th criminal procedure amendments?

If the only crimes were state crimes, and there were no federal crimes, how would the federal government have been bound by these amendments?

Corey suggests that this perhaps counsels in favor of incorporation. Perhaps, Barron v. Baltimore was wrong?

Just some more food for thought, but it gets my originalist juices flowing.

What was a federal crime in 1787? I agree with Brutus. There weren’t any.

I am helping Judge Gibson prepare the syllabus for the Federal Court Practice class at the Penn State Dickinson School of Law this Spring. For the first class, the students will be reading Article III (as all law students should).

Re-reading Article III reminded me of a question I asked my Federal Courts professors, to which I did not receive a satisfactory answer: What was a crime under the authority of the Federal Government in 1787?

Article III, Section 2 Provides:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

But what were these crimes? The Federal Government has no general police power.

Brutus XIV (28 February 1788) notes:

“There is no criminal matter, to which the judicial power of the United States will extend; but such as are included under some one of the cases specified in this section.”

I tend to agree with Brutus’s reading.

Reading the original text of the Constitution, the only federal crimes that jump to mind are counterfeiting currency and securities, and perhaps treason. But what else?

Today, most federal crimes are based in the Commerce Clause. But how were federal crimes defined before the New Deal Revolution? This may be fodder for a future law review article.

For those curious, in addition to Article III, tentatively, the students may also studying Brutus XI-XII, XIV-XV and The Federalist 78, 79, 80, 81, 82, 83, followed by Marbury v. Madison.