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REPORT OF COMMISSIONERS.
WASHINGTON, D. C., May 15, 1901. Sir: The commission to revise and codify the criminal and penal laws of the United States respectfully report as follows:
The act of Congress constituting this commission provided that “The President, with the advice and consent of the Senate, shall appoint three commissioners whose duty it shall be, under the direction of the Attorney-General, to revise and codify the criminal and penal laws of the United States. They shall proceed with their work as rapidly as may be consistent with thoroughness and shall report the result of their labors to the Attorney-General when completed, to be by him laid before Congress, and shall make such other reports during the progress of their work as they shall see fit to the Attorney-General, to be laid before Congress at his discretion. Their report shall be so made as to indicate any proposed change in the substance of existing law, and shall be accompanied by notes which shall briefly and clearly state the reasons for any proposed change."
It may be assumed that the purpose of Congress was to provide a more comprehensive system of laws for the punishment of offenses against the United States than is found in existing statutes. The original crimes act was passed at the second session of the First Congress and received the signature of President Washington on the 30th of April, 1790. It consisted of 33 sections, and not all of these related to the definition and punishment of crimes. Mr. Justice Story recognized the inadequacy of this statute and drafted a bill which became the act of March 3, 1825. These are the only acts of Congress which partake of the character of criminal or penal codes. The rest of the legislation respecting crimes consists of acts passed from time to time as experience disclosed the insufficiency of existing laws to enable the courts to deal with particular offenses, or as the growing operations of the Government created a necessity for additional penal enact
Title LXX of the Revised Statutes of 1874, entitled “Crimes," consists of 228 sections. Referring to the Criminal Code of Alabama, for example, it is found to contain 1,332 sections of which 762 relate to procedure, while 570 are devoted to the definition and punishment of crimes.
While this statement possesses a certain significance, it falls considerably short of representing the relative deficiencies of the criminal
code of the United States. It may be stated with confidence that no State of the Union retains the system of penal laws which was in force three-quarters of a century ago; and this is equally true of the leading nations of Europe. There is no branch of the science of jurisprudence in which there has been so general an advance in response to the dictates of enlightenment and humanity. In this movement the United States alone, in its Federal character, has singularly failed to participate.
To gain a clear understanding of what is needed in a federal code of crimes and punishments it is fundamentally important to take into account what may be called the territorial jurisdiction of the United States. Paragraph 17 of section 8, Article I of the Constitution, gives Congress power to exercise like authority (that is, 'exclusive legislalation in all cases whatsoever') over all places purchased by the consent of the legislature of the State in which the same shall be for the erection of forts, magazines, arsenals, dockyards, and other needful buildings.”
It was decided by Justice Story in United States v. Cornell (2 Mason, 60), that “exclusive jurisdiction is attendant upon exclusive legislation.” The condition that this involves is that a crime committed within any area acquired under the above provision must be punished by the United States or it can not be punished at all. It is now well established that there are no common-law crimes against the United States, and it follows that every offense must be defined and the penalty prescribed by law.
The Constitution specifies forts, magazines, arsenals, and dockyards and then adds “other needful buildings.” Among the latter are the post-offices, custom-houses, and court-houses that the Government has erected in all the larger cities of the Union. Not long since the Government acquired an entire block in the capital of one of the central States as the site for a post-office. It is at present covered by three or four story buildings occupied as stores, offices, etc., and is the daily scene of many forms of activity in which thousands of human beings participate. The plans for the building to be erected by the United States have recently been adopted, but it will presumably remain in the possession of its present occupants for a year or more. In the meantime, and for all subsequent time, it seems clear that neither the laws of the State nor the ordinances of the city can be enforced within its limits. It follows that the United States is chargeable with the prosecution and punishment as well of the slightest misdemeanor as of the gravest felony there committed.
But the method prescribed by the paragraph of the Constitution above quoted is not the only one by which the United States may acquire territorial jurisdiction. It may become possessed of land for other purposes than those there specified, or it may retain jurisdiction over tracts of the public domain for military reservations or other uses. The Fort Leavenworth Military Reservation has been occupied by the General Government since 1827. Upon the admission of Kansas into the Union, jurisdiction was not reserved; but in 1875 the legislature of that State ceded jurisdiction, with certain limitations, to the United States. In Fort Leavenworth Railway Company v. Lowe (114 U. S., 525) the Supreme Court decided that when the United States acquired lands within the limits of a State by purchase with the consent of the legislature of the State for the erection of forts, magazines, arsenals, dockyards, and other needful buildings the Constitution conferred upon it exclusive jurisdiction of the tracts so acquired; but when it acquired such lands in any other way than by purchase, with consent of the State, it will hold the lands subject to these qualifications:
That is upon them forts, arsenals, or other public buildings are erected for the uses of the General Government, such buildings, with the appurtenances, as instrumentalities for the execution of its powers, will be free from any such interference and jurisdiction of the State as would destroy or impair their effective use for the purposes designed.
This decision is reaffirmed in the Chicago, Rock Island and Pacific Railway Company v. McGlinn (114 U. S., 542).
In Benson v. United States (146 U. S., 325) the question arose as to the jurisdiction of the United States over the crime of murder committed on the Fort Leavenworth Military Reservation.
The court quoted from the cases mentioned above and said:
It is contended by appellants' counsel that within the scope of those decisions jurisdiction passed to the General Government only over such portions of the reservation as are actually used for military purposes, and that the particular part of the reservation on which the crime charged was committed was used solely for farming purposes; but in matters of that kind the courts follow the action of the political department of the Government. The entire tract has been legally reserved for military purposes. (United States v. Stone, 2 Wall., 525, 537.) The character and purpose of this occupation has been officially and legally established by that branch of the Government which has control over such matters. It is not open to the courts on the question of jurisdiction to inquire what may be the actual uses to which any portion of the reservation is temporarily put. There was therefore jurisdiction in the circuit court, and the first contention of the plaintiff in error must be overruled.
It would scarcely be profitable to pursue this subject further. Our purpose is subserved by the demonstration that with the sites of postoffices, court-houses, custom-houses, penitentiaries, and arsenals, and military reservations, national parks, national cemeteries, etc., there are hundreds of square miles of territory occupied or daily frequented by many thousands of human beings over which the United States has exclusive jurisdiction to punish crimes.
Chapter 3 of Title LXX of the Revised Statutes of 1874 assumes to provide for the punishment of “crimes arising within the maritime and territorial jurisdiction of the United States.” It consists of 53 sections; and this statement alone establishes its utter inadequacy to subserve the purposes for which it is designed. It is a startliny fact
that many crimes of a grave character, among them robbery and assault with intent to kill when committed on land are not denounced in the chapter mentioned or elsewhere in the laws of the United States.
The eminent author of the crimes act of 1825 obviously realized that it and the act of 1790, to which it was supplementary, fell short of supplying a comprehensive criminal code, and sought to remedy this defect by a provision that if any offense were committed in any place ceded to or under the jurisdiction of the United States, the punishment of which is not provided for by any law of the United States, it should receive the punishment prescribed by the laws of the State in which the place is situated for like offenses. This section was first construed by the courts in United States v. Paul (6 Pet., 141), in which it was held that the words "the laws of the State” meant only the laws in force at the time of the passage of the act, to wit, the 3d of March, 1825. Indeed, if the act had sought by express language to give effect to the laws existing at the time when the offense was committed, such provision would have been incompetent as a delegation of legislative authority so far as concerned criminal statutes subsequently enacted by the States. In United States v. Barney (5 Blatch., 141), the circuit court imposed a further limitation on this section by deciding that it applied only to places that had been ceded to the United States prior to its enactment. In the decision the court used this language:
: If every new deed of cession of a building site to the United States to revive a criminal code which has been defunct for forty years, strange results might follow. Whipping and the pillory would in some cases have to be inflicted, for they were the penalties denounced by some of the State laws in force in 1825 for offenses for which the laws of the United States provided no punishment. The United States have only abolished these barbarous relics of a barbarous age in cases where the infliction was provided for by acts of Congress. Indeed, I should hesitate long before deciding that Congress intended that the courts should have resort to the repealed laws of any State as a source of criminal jurisdiction.
It follows, therefore, that inasmuch as the Supreme Court have declared that the third section of the act of 1825 restricts the courts to the laws of the States then in force, the operation of the act must also be restricted to the places which had been ceded at or before that time. This is the logical result of the doctrine laid down in United States v. Paul, already cited, and so long as that case stands is the only one which can be reached without producing a most singular and incongruous state of things, which, I think it is not too much to say, Congress never intended.
A few weeks after the above case was decided Congress adopted an amendment inserting before “ceded” the words “or may hereafter be;” and with that addition it will be found in the Revised Statutes as section 5391. Later, another infirmity was observed in the fact that the provision did not apply to cases where military reservations, for example, had not been acquired by purchase, but simply carved out of the public domain, and the jurisdiction retained by the United States. This was sought to be cured by an act entitled “An act to protect the harbor defenses and fortifications constructed or used by the United