Original Crime: Another Reply to Professor Kerr, and When did Congress Criminalize Intrastate Activities?

November 23rd, 2009

Last week, I blogged about federal crimes, and queried what exactly was a federal crime at the time of the founding (See Thread Here). In short, most federal crimes today are premised on the Commerce Clause. But what about crimes in our early Republic?

Professor Orin Kerr helpfully suggested I look at  1 Stat. 112, enacted April 30, 1790 and Chief Justice Marshall’s opinion United States v. Wiltberger (1820).

But these statues and case law dealt solely with matters clearly in the province of the federal government, and not traditional common law crimes.

Troll_DC2, a frequent commenter, asked:

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.

In reply to Troll, Orin Kerr recommended two pre-New Deal Commerce Clause cases:

1)  Hoke v. United States (1913), which upheld the White Slave Traffic Act of 1910: http://supreme.justia.com/us/227/308/case.html
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. http://supreme.justia.com/us/274/256/case.htmlI recommend reading two pre-New Deal Commerce Clause cases:

But, do these cases really answer my question?

With respect to Hoke, it still dealt with white slaves crossing state lines. I don’t know if moving people is commerce, but at least its intrastate. Westfall was issued in 1927. Although this is Pre-New Deal, the Court had already advanced its commerce clause jurisprudence significantly. Furthermore, it still had something to do with the federal reserve, a federal entity.

So, here is my final question. And I will find an answer: When did congress starting criminalizing acts that were wholly in intrastate (think McCullough, not Wickard)  that had nothing to do with any discernible federal interest? If a state line was crossed, or used an instrumentality of commerce (roads, rivers, etc), or it dealt with something arising from the Federal Government, I’m not interested.

The time period I need to look at is the 19th Century. My Co-Author, Corey Carpenter, found two interesting cases.

More after the jump.

U.S. v. Bevans, 16 U.S. 336, 1818 WL 2443 (1818) (Marshall, C.J)

In this case:

The defendant, William Bevans, was indicted for murder in the circuit court for the district of Massachusetts. The indictment was founded on the 8th section of the act of congress of the 30th of April, 1790, ch. 9. and was tried upon the plea of not guilty. At the trial, it appeared in evidence that the offence charged in the indictment, was committed by the prisoner on the sixth day of November, 1816, on board the United States ship of war Independence, rated a ship of the line of seventy-four guns, then in commission, and in the actual service of the United States, under the command of Commodore Bainbridge.

This case is a historical gem. None other than Daniel Webster argued on behalf of the Defendant, Chief Justice Marshall authored the opinion. Webster argues that because the ship was in harbor, it was not on the “high seas,” and thus was beyond the jurisdiction of Congress. After the defendant was convicted, the Circuit Judge certified these questions to the Supreme Court:

1. Whether, upon the foregoing statement of facts, the offence charged in the indictment, and committed on board the said ship as aforesaid, was within the jurisdiction of the state of Massachusetts, or of any court thereof.

2d. Whether the offence charged in the indictment, and committed on board the said ship as aforesaid, was within the jurisdiction or cognizance of the circuit court of the United States, for the district of Massachusetts.

Question 2d would seem relevant to query. Chief Justice Marshall disposes of this question very quickly.

The indictment appears to be founded on the 8th sec. of the ‘act for the punishment of certain crimes against the United States.’ That section gives the courts of the union cognizance of certain offences committed on the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state.

Whatever may be the constitutional power of congress, it is clear that this power has not been so exercised, in this section of the act, as to confer on its courts jurisdiction over any offence committed in a river, haven, basin or bay; which river, haven, basin, or bay, is within the jurisdiction of any particular state.

To bring the offense within the jurisdiction of the courts of the union, it must have been committed in a river, &c. out of the jurisdiction of any state. It is not the offence committed, but the bay in which it is committed, which must be out of the jurisdiction of the state. If, then, it should be true that Massachusetts can take no cognizance of the offence; yet, unless the place itself be out of her jurisdiction, congress has not given cognizance of that offence to its courts. If there be a common jurisdiction, the crime cannot be punished in the courts of the union.

Marshall continues to define when the crime is within Massachusetts, and when it is in the jurisdiction of the federal government.

It is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty  and maritime jurisdiction, is in the government of the union. Congress may pass all laws which are necessary and proper for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts. Suppose for example the power of regulating trade had not been given to the general government. Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction, have devested Massachusetts of the power to regulate the trade of her bay?

Very funny example:

As the powers of the respective governments now stand, if two citizens of Massachusetts step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction, and punishable by the laws of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the bay in which this murder was committed, is not out of the jurisdiction of a state, and the circuit court of Massachusetts is not authorized, by the section under consideration, to take cognizance of the murder which had been committed.

The seas are an exclusive federal jurisdiction. This case seems to stand for the proposition Congress cannot proscribe crimes outside of their federal jurisdiction, that is in Boston Harbor.

Upon these reasons the court is of opinion, that a murder committed on board a ship of war, lying within the harbour of Boston, is not cognizable in the circuit court for the district of Massachusetts; which opinion is to be certified to that court.

Though, fi they Congress to pass a Bill of Attainder disbanding the Boston Red Sox, I would not complain.

Commonwealth v. Schaffer, 4 Dall.Append. XXVI, 1797 WL 1 (Pa.Mayor), 1 L.Ed. 926, 4 U.S.Append. XXVI (1797)

In this case:

THE defendant was indicted and convicted for forging the names of several soldiers to powers of attorney, authorising him to demand and receive, their warrants for the donation lands, granted by acts of congress, for services during the revolutionary war. Dallas observed, that as the question of the common law jurisdiction of the federal Courts, in criminal cases, had not been decided, it was his duty, as counsel for the defendant, (without declaring his own opinion) to bring it before the Court, on the present occasion. He, therefore, moved in arrest of judgment, that the offence, charged in the indictment, arises under a law, or laws, of the United States; and is exclusively cognizable in their Courts.

Someone seems to have made the objection that this crime was not in the jurisdiction of the Federal Government:

In answer to an objection, that the laws and constitution of the United States no where defined the crime of forgery, in such manner as to comprehend the offence charged in the indictment; nor was the common law of England, relating to crimes and offences, extended to theUnited States; nor was there any law of the United States which prescribed a punishment for forgeries generally.

It was said, that there was no act of congress which either defined the offence, or the punishment, in those cases; but it was said, that the common law would give the rule for both.

It was argued . . . [t] hat under the constitution of the United States, no power is given to punish the offence of stealing records, robbery, perjury, and the laws of congress, p. 153. prescribe the punishment of these offences, in particular cases.

To this, the court replied:

The act of congress for punishing certain crimes against the United States, Laws of United States, s. 14. p. 151. and against forgery ofindents or public securities of the United States were cited, and the judiciary law, s. 34. p. 112. which says that the laws of the several states, except where the constitution, treaties, or statutes, of the United States, shall otherwise require, shall be regarded as the rules of decision, in trials at common law, in the Courts of the United States.

As the laws of congress have made provision, in these cases, without any power given by the constitution expressly for the purpose; in the same manner, the authority of congress is competent to declare, by law, how the offence charged against John Schaffer, shall be tried and punished. And, therefore, it is an offence not of state cognizance, but ought to be tried in the Courts of the United States only

On what authority did the Court cite to support this proposition?

Mr. Ingersoll and Mr. Thomas, in support of the jurisdiction of the Court, referred to the following authorities. Const. of U. S. art. 3. s. 2.art. 1. s. 8. p. 8. No. 10. 12 th Amend. Const. U. S. Resol. of Cong. vol. 8. p. 289. 4 th July 1783. Ib. vol. 10. p. 366. 1 st Aug. 1786. Ib. vol. 12. p. 114. 23 d July 1787. 2 vol. Laws of Cong. p. 49. 52. 154. 2 vol. Federalist, p. 323, 324.  Const. U. S. art. 1. s. 8. No. 6. Laws of U. S. s. 16. p. 151.

The 1st and 3d articles of the constitution of the United States, principally affect this question; they respect the legislative and judicial powers, and contain an extensive enumeration of subjects, whereon their legislative power may be exercised, and to which the judicial power shall extend, and it is reasonable to say, that there may be powers which are not enumerated in it, but ought to be considered as granted by the constitution; for instance, those (if such there be) which are essential to the independence of the government, to its protection and defence, to such as grow out of the constitution, and out of the constitutional laws of Congress.

I have not had the time to dig through all of these sources yet, but I welcome anyone to go for it, and let me know what you find.

Here is the Court’s reasoning:

If it be true, that this offence may be considered as growing out of an act of congress, because, if congress had never engaged to give lands to soldiers of a particular description, there never could have been a forgery of such a power of attorney: yet, it still remains a question, whether, under all existing circumstances, this court has jurisdiction.

If the authority of congress is competent to declare the false making such a paper to be a crime of forgery, to prescribe its punishment, and to appoint the place of trial to be in the courts of the United States, exclusively of the state courts; yet, on examination, it will be found, that congress has not, by any act, legislated on any of these points. No act of congress, has, either definitely or by general description, made the false fabrication of such a writing to be a forgery, nor has any act declared how such a forgery or forgeries, generally, shall be punished. No act has given jurisdiction to any court, either concurrent or exclusive, to try the crimes of forgeries generally.

If these positions be true, they tend to shew it doubtful, whether, at this day, under the existing laws of the United States, this forgery could be tried and punished in their courts; however, future laws may make them so.

To say that the constitution of the United States, operated any abridgment of the jurisdiction of the state courts, as to crimes generally, of forgery, perjury, larceny, merely because they related to the interest or concerns of the United States, or their officers, acting under their laws, before they themselves, by their own acts, shall have provided for the punishment of such crimes, and taken order as to the jurisdiction of them, would lead to this consequence, that for a time, consistent with such doctrine, some crimes would, by law, be subject to no prosecution or punishment.

In the 2d vol. of the Federalist, page 323, 324. which may be called a commentary on the constitution of the United States, contemporary with it, it is held that ‘the states retain all preexisting authorities which may not be exclusively delegated to the federal head; and that this exclusive delegation can only exist in one of three ways; 1. where an authority is in express terms granted to the union; 2. or where a particular authority is granted to the union, and the exercise of a like authority is prohibited to the states; 3. or where an authority is granted to the union, with which a similar authority in the states would be utterly incompatible. Though these principles may not apply with the same force to the judiciary as to the legislative power, yet I am inclined to think, that they are, in the main, just, with respect to the former as well as the latter; and, under this impression, I shall lay it down as a rule, ‘That the state courts will retain the jurisdiction they now have, unless it appears to be taken away in one of the enumerated ways.’

Based on this reasoning, the Court holds that this crime is not in the jurisdiction of the Federal Government

But the present case is not one of those which comes within the exceptions of that writer. 1st. The jurisdiction of this crime is not exclusively granted to the union. 2d. It is not prohibited to the states. 3d. Nor, if it is granted to the union, is it a case where a similar authority in the states would be incompatible.

The Court goes on to discuss the different federal crimes, and considers how they all relate to federal interests.

In the act of congress, p. 147. ‘for the punishment of certain crimes,’ the murders, or larcenies, there memtioned, are such as may be committed within forts, arsenals, dock-yards, federal district, places ceded by the states to the United States, or upon the high seas, perjuries in their own Courts of justice under any act of congress, forgeries of indents or public securities. In general they are those subjects submitted by the constitution to be legislated upon by them, and made subject to their judicial authority. Congress having exercised their power over many subjects submitted by the constitution, and to some arising under their laws; but never having touched the present subject, of which this state had a pre-existing cognizance, it may be considered as casus omissus by their laws; and until they shall, by some future act, exercise their authority over the subject by designating the crime, prescribing the punishment, and giving to the Courts of theUnited States exclusive jurisdiction, this Court may, constitutionally, take cognizance of the cause, and punish the offense, by the laws of this state.

Therefore the 11th section of the judiciary act, which gives to the Circuit Court exclusive cognizance of all crimes and offences cognizable under the authority of the United States, may be reasonably supposed not to have contemplated this case, which by no act of congress is designated as a crime, nor has it any appointed punishment.

Upon this comprehensive view of the question, the Court are of opinion, that they are competent to the jurisdiction of this cause, and, therefore, do over-rule the motion that has been made in arrest of judgment, founded on the objection to their want of jurisdiction.

The Court’s focus here does not seem to be on the enumerated powers question I present, but more on displacing the pre-existing jurisdiction of the State Courts. In fact, if the Congress legislates on this matter in the future, to divest the state courts of jurisdiction, the Court seems content with that.


I am going to keep digging, but it seems that at some point in American history, Courts told Congress they lacked the ability to criminalize actions that were not inter-state, and did not relate to federal interests.