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may recover compensation in an independent suit against the United States.86 A stipulation pending an appeal that the award shall be then paid to the owner upon his giving security for which he receives does not relieve him of liability for costs of the appeal if he is unsuccessful.87 The requirement of the New York statute that a municipal condemner shall furnish the owner with three printed copies of the evidence does not relieve the latter from liability for costs upon appeal for the certification, and supervision by the clerks and for printing the record in the Circuit Court of Appeals.88

86 Ibid., 64 Fed. 472, 476. Α dictum.

87 Re Bensel, 230 Fed. 932.
88 Ibid.

CHAPTER XXXI.

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PRACTICE IN CRIMINAL CASES.

§ 483. Sources of federal criminal law. The Constitution has given neither to Congress nor to the Courts of the United States any general criminal jurisdiction. The only specific grants to Congress upon the subject are four, as follows: to punish treason, counterfeiting, Federal securities and coins, crimes committed on the high seas and offenses against the law of nations.

The provisions upon the subject are these: "The Congress shall have Power to declare the Punishment of Treason; but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." 1

"To provide for the Punishment of counterfeiting the Securities and current Coin of the United States" and "to define Piracies and Felonies committed on the high Seas and Offences against the Law of Nations." 4

The other crimes punishable by the Federal courts are acts which obstruct the exercise of powers vested in the United States or of those such as are inherent to its existence as a sovereignty; and these only when they are made criminal by Acts of Congress. Thereamongst are crimes against the postal laws,5 the national banking laws, the acts regulating interstate and international commerce laws,7 including the white slave law, and the immigration laws, crimes against the liquor laws, 10 smuggling,11 crimes against the internal revenue law,12 against the land laws, 13 and perjury.14

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§ 483. 1 Article III, Section. 3. See infra, § 534.

2 Article I, Section 8. See infra, § 506j.

8 Article I, Section 8. See infra,

§ 525a.

4 Article I, Section 8.

5 See infra, §§ 506a, 506b.

6 See infra, § 506.

7 See infra, §§ 506e-506f.

8 See infra, § 506g.

9 See infra, §§ 506e-506h, 506m506p.

10 See infra, § 506q.

11 See infra, § 506n.

12 See infra, §§ 506k, 506 1.

13 See infra, § 506s.

14 See infra, § 506r.

2526

Although in the early years of our existence as a nation the opinions of the bench and the bar on this subject were divided,15 it is now firmly adjudicated, that the Federal courts have no criminal jurisdiction at common law.16 They can punish no crimes which are not created by acts of Congress.17 No State statute nor doctrine of the common law established by the adjudications of State tribunals, can enlarge or restrict the power of the Federal court to punish crimes, 18 although such decisions are often used as persuasive analogies 19 and are always treated with great respect.20 Certain provisions of the State statutes have been incorporated by reference into acts of Congress so that in cases arising thereunder, the Federal criminality of the act depends upon the law of the State where it is committed. Illustrations of this are the former Federal election laws,21 the civil rights laws, 22 and the provisions of the Criminal Code as to crimes admitted upon territory ceded by the States, or bought or otherwise acquired or received from them.23

Such acts of Congress are valid in so far as they adopt State statutes previously enacted.24 Whether they may make a crime against the United States an action otherwise innocent, which is made criminal before its commission by a State statute passed after the congressional enactment is a serious question because of the doctrine expressed in the maxim delegatus non potest delegari.25

15 See Henfield's Case, U. S. C. C. Pa. D. 1793; Wharton's State Trials 49; Revara's Case, U. S. C. C. D. Pa. 1793, Ibid 90.

16 U. S. v. Worrall, 2 Dallas 384, 1 L. ed. 426; U. S. v. Hudson, 7 Cranch, 32 L. ed. 259; U. S. v. Coolidge, 1 Wheaton, 415 L. ed. 124; U. S. v. Britton, 108 U. S. 199, 206, 27 L. ed. 703; Jones v. U. S., 137 U. S. 202, 211, 34 L. ed. 691; Manchester v. Mass., 139 U. S. 240, 262, 35 L. ed. 159, 166; Oliver v. U. S., C. C. A., 230 Fed. 971; Duponceau on Jurisdiction, supra, § 477a.

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19 Howard v. U. S., C. C. A., 75 Fed. 986, 989; Cohen v. U. S., C. C. A., 214 Fed. 23, 26; U. S. v. De Bolt, C. C. A., 253 Fed. 78.

20 Jones v. U. S., C. C. A., 162 Fed. 472.

21 U. S. R. S., § 515. Ex parte, Siebold, 100 U. S. 371, 25 L. ed.

717.

22 U. S. R. S., § 5509; U. S. v. Mason, 213 U. S. 115, 53 L. ed. 729. 23 Infra, § 483c.

24 Franklin v. U. S., 216 U. S. 559.

25 Knickerbocker v. Stewart. 253 U. S. 149.

§ 483a. Concurrent criminal jurisdiction. In certain cases, the State and Federal courts have concurrent jurisdiction to punish the commission of the same act. The Federal courts now have exclusive jurisdiction to punish crimes against the United States. Before such power was made exclusive, in the opinion of the majority of the Supreme Court the States had the power to grant to their tribunals power to punish crimes against the United States. At the present time, there are a number of acts which are offenses against the laws of the United States and are also crimes under the laws of the State where they are committed. Thereamongst are: the passing of counterfeit money; an assault upon an officer of the United States which is a breach of the peace of a State; formerly under the fugitive Slave laws, aid given to the runaways when prohibited by both a State and a Federal law; keeping a house of prostitution which con-. tains alien women who are recent immigrants; but not perjury before a State officer in testimony upon a contested election to the House of Representatives of the United States."

3

It has been said: that where an offense made a crime by an act of Congress is expressly punishable as such by a State statute, and that where the same acts constitute a criminal offense against the State and against the United States 9 an acquittal 10 or conviction 11 by a court of either sovereignty does not bar a conviction and punishment by a court of the other; but that in the absence of extraordinary circumstances a double punishment should not be inflicted.12 This apparent exception to the prohibition against double jeopardy does not apply to the

§ 483a. 1 Jud. Code, § 256, 36 St. at L. 1087.

2 Houston v. Moore, 5 Wheaton 1. 3 Fox v. State of Ohio, 5 How. 410; U. S. v. Marigold, 9 How. 560; Moore v. People, 14 How. 13, 19, 20.

4U. S. v. Cruikshank, 92 U. S. 542, 550, 23 L. ed. 588. See U. S. v. Barnhart, 22 Fed. 285, 290.

5 Moore v. People, 14 How. 17. See also dissenting opinion of Edmonds, J., Manly v. People, 7 N. Y. 295, 303.

6 U. S. v. Palan, 167 Fed. 991. 7 Re Loney, 134 U. S. 372.

8 Houston v. Moore, 5 Wheaton 1, 35, per Johnson, J. Contra, Story, J., Ibid, p. 75.

9 Moore v. People, 14 How. 31, 19, 20; U. S. v. Palan, 167 Fed. 991. 10 Ibid.

11 Ibid.

12 U. S. v. Palan, 167 Fed. 991.

courts held in the Philippines.13 An acquittal in a State court of murder is a bar to so much of an indictment in a Federal court for a criminal conspiracy as charges a commission of such murder in pursuance thereof.14

When the criminal jurisdiction is concurrent, ordinarily the court which first took the offender into custody has the right of way, and may maintain the custody against interference by the other; but such an objection must be raised by the public prosecutor. The criminal cannot thus obtain release.16

15

§ 483b. Concurrent criminal jurisdiction in prohibition cases. The Eighteenth Amendment prohibiting the manufacture, sale, and transportation of intoxicating liquors, ordains: "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation."

1

This clause does not enable Congress or the several States to defeat or thwart the prohibition, but only to enforce it by appropriate means. The phrase "concurrent power" does not mean joint power, nor require that legislation by Congress thereunder, to be effective, shall be approved by any of the States. Nor does it signify that the power to enforce the Amendment is divided between Congress and the several States along the lines which separate or distinguish foreign and interstate commerce from intra State affairs.2

Where Congress, subsequent to the adoption of the Amendment has enacted a law defining the phrase "intoxicating liquors, or has adopted some other measure for the purpose of enforcing prohibition, no subsequent State statute, upon this particular subject which is inconsistent with such act of Congress is valid. Nor is such a State statute enacted prior to the adoption of the Eighteenth Amendment valid. The validity of a State statute for the enforcement of prohibition which is enacted subsequent to the Amendment at a time when no act of Congress upon the subject is in force; but which is repugnant to a subsequent act

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