The Constitution of the United States of America: Analysis and Interpretation
Chapter 31 : DEFINITION AND PUNISHMENT OF CRIMES Although the only crimes which Congress is expressl

DEFINITION AND PUNISHMENT OF CRIMES

Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded.[1400] Ill.u.s.trative of the offenses which have been punished under this power are the alteration of registered bonds;[1401] the bringing of counterfeit bonds into the country;[1402] conspiracy to injure prisoners in custody of a United States marshal;[1403] impersonation of a federal officer with intent to defraud;[1404] conspiracy to injure a citizen in the free exercise or enjoyment of any right or privilege secured by the Const.i.tution or laws of the United States;[1405] the receipt by government officials of contributions from government employees for political purposes;[1406]

advocating, etc., the overthrow of the Government by force.[1407] Part I of t.i.tle 18 of the United States Code comprises more than 500 sections defining penal offenses against the United States.

CHARTERING OF BANKS

As an appropriate means for executing "the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies * * *" Congress may incorporate banks and kindred inst.i.tutions.[1408] Moreover, it may confer upon them private powers which, standing alone, have no relation to the functions of the Federal Government, if those privileges are essential to the effective operation of such corporations.[1409] Where necessary to meet the compet.i.tion of State banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the compet.i.tive situation, federal instrumentalities might not be permitted to engage in such business.[1410] The Court will not undertake to a.s.sess the relative importance of the public and private functions of a financial inst.i.tution which Congress has seen fit to create. It sustained the act setting up the Federal Farm Loan Banks to provide funds for mortgage loans on agricultural land against the contention that the right of the Secretary of the Treasury, which he had not exercised, to use these banks as depositaries of public funds, was merely a pretext for chartering these banks for private purposes.[1411]

CURRENCY REGULATIONS

Reinforced by the necessary and proper clause, the powers "'to lay and collect taxes, to pay the debts and provide for the common defence and general welfare of the United States,' and 'to borrow money on the credit of the United States and to coin money and regulate the value thereof * * *'";[1412] have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of State banks;[1413] the issuance of treasury notes impressed with the quality of legal tender in payment of private debts[1414] and the abrogation of clauses in private contracts which called for payment in gold coin,[1415] were sustained as appropriate measures for carrying into effect some or all of the foregoing powers.

POWER TO CHARTER CORPORATIONS

In addition to the creation of banks, Congress has been held to have authority to charter a railroad corporation,[1416] or a corporation to construct an interstate bridge,[1417] as instrumentalities for promoting commerce among the States, and to create corporations to manufacture aircraft[1418] or merchant vessels[1419] as incidental to the war power.

COURTS AND JUDICIAL PROCEEDINGS

Inasmuch as the Const.i.tution "delineated only the great outlines of the judicial power * * *, leaving the details to Congress, * * * The distribution and appropriate exercise of the judicial power must * * *

be made by laws pa.s.sed by Congress, * * *"[1420] As a necessary and proper provision for the exercise of the jurisdiction conferred by article III, section 2 Congress may direct the removal from a State to a federal court of a criminal prosecution against a federal officer for acts done under color of federal law,[1421] and may authorize the removal before trial of civil cases arising under the laws of the United States.[1422] It may prescribe the effect to be given to judicial proceedings of the federal courts,[1423] and may make all laws necessary for carrying into execution the judgments of federal courts.[1424] When a territory is admitted as a State, Congress may designate the Court to which the records of the territorial courts shall be transferred, and may prescribe the mode for enforcement and review of judgments rendered by those courts.[1425] In the exercise of other powers conferred by the Const.i.tution, apart from article III, Congress may create legislative courts and "clothe them with functions deemed essential or helpful in carrying those powers into execution."[1426]

SPECIAL ACTS CONCERNING CLAIMS

This clause enables Congress to pa.s.s special laws to require other departments of the Government to prosecute or adjudicate particular claims, whether a.s.serted by the Government itself or by private persons.

In 1924,[1427] Congress adopted a Joint Resolution directing the President to cause suit to be inst.i.tuted for the cancellation of certain oil leases alleged to have been obtained from the Government by fraud, and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation.

Private acts providing for a review of an order for compensation under the Longsh.o.r.eman's and Harbor Workers' Compensation Act,[1428] or conferring jurisdiction upon the Court of Claims to hear and determine certain claims of a contractor against the Government, in conformity with directions given by Congress, after that court had denied recovery on such claims, have been held const.i.tutional.[1429]

MARITIME LAW

Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending the maritime law which existed at the time the Const.i.tution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.[1430] This power cannot be delegated to the States; hence acts of Congress which purported to make State Workmen's Compensation laws applicable to maritime cases were held unconst.i.tutional.[1431]

Section 9. Clause 1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Powers Denied to Congress

GENERAL PURPOSE OF THE SECTION

This section of the Const.i.tution (containing eight clauses restricting or prohibiting legislation affecting the importation of slaves, the suspension of the writ of _habeas corpus_, the enactment of bills of attainder or _ex post facto_ laws, the levying of taxes on exports, the granting of preference to ports of one State over another, the granting of t.i.tles of n.o.bility, etc.,) is devoted to restraints upon the power of Congress and of the National Government,[1432] and in no respect affects the States in the regulation of their domestic affairs.[1433]

The above clause, which sanctioned the importation of slaves by the States for twenty years after the adoption of the Const.i.tution, when considered with the section requiring escaped slaves to be returned to their masters (art. IV, -- 1, cl. 3), was held by Chief Justice Taney in Scott _v._ Sanford,[1434] to show conclusively that such persons and their descendants were not embraced within the term "citizen" as used in the Const.i.tution. Today is interesting only as an historical curiosity.

Clause 2. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

HABEAS CORPUS

Purpose of the Writ

This section, which restricts only the Federal Government and not the States,[1435] is the only place in the Const.i.tution where the writ of _habeas corpus_ is mentioned. The framers took for granted that the courts of the United States would be given jurisdiction to issue this, the greatest of the safeguards of personal liberty embodied in the common law, and the Judiciary Act of 1789[1436] provided for the issuance of the writ according to "the usages and principles of law." At common law the purpose of such a proceeding was to obtain the liberation of persons who were imprisoned without just cause.[1437]

While the Supreme Court conceded at an early date that the authority of the federal courts to entertain pet.i.tions for _habeas corpus_ derived solely from acts of Congress,[1438] a narrow majority recently a.s.serted the right to expand the scope of the writ by judicial interpretation and to sanction its use for a purpose unknown to the common law, i.e., to bring a prisoner into court to argue his own appeal. Speaking for the majority Justice Murphy declared that: "However, we do not conceive that a circuit court of appeals, in issuing a writ of _habeas corpus_ under -- 262 of the Judicial Code, is necessarily confined to the precise forms of that writ in vogue at the common law or in the English judicial system. Section 262 says that the writ must be agreeable to the usages and principles of 'law,' a term which is unlimited by the common law or the English law. And since 'law' is not a static concept, but expands and develops as new problems arise, we do not believe that the forms of the _habeas corpus_ writ authorized by -- 262 are only those recognized in this country in 1789, when the original Judiciary Act containing the substance of this section came into existence."[1439]

Errors Which May Be Corrected on Habeas Corpus

The writ of _habeas corpus_ provides a remedy for jurisdictional and const.i.tutional errors at the trial without limit as to time.[1440] It may be used to correct errors of that order made by military as well as by civil courts.[1441] Under the common law and the Act 31 Car. II c. 2 (1679), where a person was detained pursuant to a conviction by a court having jurisdiction of the subject matter, _habeas corpus_ was available only if a want of jurisdiction appeared on the face of the record of the Court which convicted him. A showing in a return to a writ that the prisoner was held under final process based upon a judgment of a court of competent jurisdiction closed the inquiry.[1442] Under the Judiciary Act of 1789[1443] the same rule obtained.[1444] But by the act of February 5, 1867,[1445] Congress extended the writ to all persons restrained of their liberty in violation of the Const.i.tution or a law or treaty of the United States, and required the Court to ascertain the facts and to "dispose of the party as law and justice require." This gave the prisoner a right to have a judicial inquiry in a court of the United States into the very truth and substance of the causes of his detention. The Supreme Court has said that there is "no doubt of the authority of the Congress to thus liberalize the common law procedure on _habeas corpus_ * * *" .[1446]

Habeas Corpus Not a Subst.i.tute for Appeal

Since the writ of _habeas corpus_ is appellate in nature, Congress may confer jurisdiction to issue it upon the Supreme Court as well as upon the inferior federal courts.[1447] The proceeding may not, however, be used as a subst.i.tute for an appeal or writ of error.[1448] But if special circ.u.mstances make it advantageous to use this writ in aid of a just disposition of a cause pending on appeal it may be used for that purpose.[1449] Where facts dehors the record, which are not open to consideration upon appeal, are alleged to show a denial of const.i.tutional rights, a judicial hearing must be granted to ascertain the truth or falsity of the allegations.[1450]

Issuance of the Writ

On application for a writ of _habeas corpus_, the Court may either issue the writ, and, on the return, dispose of the case, or it may waive the issuing of the writ and consider whether, upon the facts presented in the pet.i.tion, the prisoner, if brought before it, could be discharged.[1451] The proceeding may not be used to secure an adjudication of a question which, if determined in the prisoner's favor, could not result in his immediate release.[1452] A discharge of a prisoner on _habeas corpus_ is granted only in the exercise of a sound judicial discretion.[1453] While the strict doctrine of _res judicata_ does not apply to this proceeding,[1454] the Court may, in its discretion, dismiss a pet.i.tion for _habeas corpus_ where the ground on which it is sought had been alleged in a prior application, but the evidence to support it had been unjustifiably withheld for use on a second attempt if the first failed.[1455] Where the Government did not deny the allegation in a prisoner's fourth pet.i.tion for _habeas corpus_, but sought dismissal of the proceedings on the ground that the prisoner had abused the writ, the prisoner was held to be ent.i.tled to a hearing to determine whether the charge of abusive use of the writ was well founded.[1456]

Suspension of the Privilege

A critical question under this section is who determines with finality whether the circ.u.mstances warrant suspension of the privilege of the writ. In England the writ may be suspended only by Act of Parliament,[1457] and in an early case Chief Justice Marshall a.s.serted that the decision as to when public safety calls for this drastic action depends "on political considerations, on which the legislature is to decide."[1458] At the beginning of the Civil War Lincoln authorized the Commanding General of the Army of the United States to suspend the writ along any military line between Philadelphia and Was.h.i.+ngton.[1459] In Ex parte Merryman,[1460] Chief Justice Taney strongly denounced the President's action and rea.s.serted the proposition that only Congress could suspend the writ. Attorney General Bates promptly challenged Taney's opinion. Noting that in Ex parte Bollman, Marshall did "not speak of suspending the _privilege_ of the writ, but of suspending the _powers vested in the Court_ by the act," he took the position that the const.i.tutional provision was itself the equivalent of an Act of Parliament.[1461] Thereafter, by an express provision of the act of March 3, 1863, Congress declared, "That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of _habeas corpus_ in any case throughout the United States, or any part thereof."[1462] The validity of this statute was a.s.sumed in Ex parte Milligan,[1463] but a narrow majority of the Court declared that the suspension of the writ did not authorize the arrest of any one, but simply denied to one arrested the privilege of the writ in order to obtain his liberty.[1464]

Clause 3. No Bill of Attainder or ex post facto Law shall be pa.s.sed.

BILLS OF ATTAINDER

Historically, the term "bills of attainder" was applied to "such special acts of the legislature as inflict capital punishment upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings."

An act which inflicted a milder degree of punishment was called a bill of pains and penalties.[1465] Within the meaning of the Const.i.tution, however, bills of attainder include bills of pains and penalties.[1466]

As interpreted by the Supreme Court, this clause prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial * * *"[1467]

Two acts of Congress--one which required attorneys practicing in the federal courts to take an oath that they had never given aid to persons engaged in hostility to the United States,[1468] and another which prohibited the payment of compensation to certain named government employees who have been charged with subversive activity,[1469]--have been held unconst.i.tutional on the ground that they amounted to bills of attainder.

EX POST FACTO LAWS