Treason

Article Three provides that: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. 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."^[16]

As to misprision of treason, according to David P. Currie, because "[t]he Constitution said nothing of this offense", "the legislators must have interpreted the narrow definition of treason in Article III not to preclude it from creating lesser related offenses that might otherwise fall within federal purview—although nothing in the misprision provision suggested that Congress had yet considered the possible impact of the Treason Clause on its efforts to punish seditious expression."^[17]

Piracy and the high seas

Article One provides that Congress shall have the power "[t]o define and punish Piracies and Felonies committed on the high Seas".^[18] Five sections in the Crimes Act "were devoted to the subject".^[19] Currie notes that the various piracy offenses "take an exceedingly broad view of what constituted piracy", but that "[f]rom a constitutional standpoint no harm was done, since all of the acts punished were felonious and Congress's power extended to all felonies on the high seas."^[20]

"The principal provisions with respect to piracy were incorporated in section 8."^[19] Section 8 applied not only to the "high Seas", but also to "any river, haven, basin, or bay, out of the jurisdiction of any particular State". Currie notes a variety of constitutional theories which Congress might have espoused in order to justify this provision: "Whether Congress thought authority over such places included within the ostensibly narrower term 'high Seas', necessary and proper to the regulation of commerce or to the exercise of admiralty jurisdiction, or implicit in a central government responsible for external affairs is not clear."^[21]

Currie also argues that the phrase "offence, which, if committed within the body of a county, would, by laws of the United States, be punishable with death" is vague. He suggests that it could refer to any federal law, to any state or federal law, or only to federal laws applicable to places under exclusive federal jurisdiction.^[22]

Counterfeiting

Article One provides that Congress shall have the power "[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States."^[23] Currie argues that section 14's somewhat broad reading of the word "Securities" is fair enough.^[21] Currie suggests that "[n]othing was said of counterfeiting coins" because the United States Mint had not yet been established.^[24]

Some members of the House, including Theodore Sedgwick of Massachusetts, spoke against the prescribing death penalty for counterfeiting, viewing it as too harsh.^[25]

Crimes against the law of nations

Article One provides that Congress shall have the power "[t]o define and punish ... Offenses against the Law of Nations."^[18] According to Currie: "No reliance on inherent on implied powers over foreign affairs was necessary to justify" sections 26 and 28 as each "plausibly described" offenses against the law of nations.^[26] Congress had also created a civil offense against the law of nations in the Alien Tort Statute of the Judiciary Act of 1789.^[27]

Exclusive federal jurisdiction

Several offenses were limited to acts committed in places "under the sole and exclusive jurisdiction of the United States". Such regulations would have applied in the "Seat of the Government", federal enclaves, and federal territories.

Article One provides that Congress shall have the power "[t]o exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority 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, dock-Yards, and other needful Buildings."^[28] And Article Four provides that "Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory ..."^[29]

With reference to the "arms, ordnance, munition, shot, powder, or habiliments of war belonging to the United States" provision of section 16, Currie argues that it could have been justified under Congress's Article One power to "raise and support armies" or Congress's Article Four power to make needful rules respecting "property belonging to the United States".^[30]

In United States v. Bevans (1818), although the defendant had only been charged under § 8 of the Crimes Act, Chief Justice Marshall proceeded to consider whether the offense would have been cognizable under § 3.^[31] Following the canon of noscitur a sociis, Marshall interpreted the jurisdictional phrase "any fort, arsenal, dockyard, magazine, or in any other place, or district of country" to be limited to places that are "fixed and territorial" (i.e. not to include a navy vessel).^[32]

Crimes against persons

Integrity of the judicial process

The constitutional authorization of these crimes was less explicit, but Article One does provide that Congress shall have the power "[t]o constitute Tribunals inferior to the supreme Court."^[33] According to Currie:

This is the point at which explicit constitutional authority for the creation of federal crimes runs out. But the statute went on to define additional crimes: theft or falsification of court records, perjury, bribery of federal judges, interference with judicial process, and liberation of federal prisoners. All of these were plainly necessary and proper to the operation of the federal courts; Marshall was to cite the perjury section as precedent for the existence of implicit powers in M'Culloch v. Maryland.^[34]

According to Stacy and Dayton, these provision are "compelling evidence that the founders did not intend the national role in criminal law to be limited to crimes expressly mentioned in the Constitution".^[35]

Statute of limitations

Section 32 provided for the following statutes of limitations: no statute of limitations for wilful murder or forgery; no statute of limitations for fugitives from justice; three (3) years for capital offenses (other than wilful murder and forgery); two (2) years for non-capital offenses.^[36] In United States v. Cook (1872), the Court held that indictments need not plead facts establishing that these limitations periods have not run.^[37]

Venue

Section 8 provided that "the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular State, shall be in the district where the offender is apprehended, or into which he may first be brought".^[38] Thus, section 8 was an exercise of Congress's authority under Article Three to define criminal venue for all crimes "not committed within any State".^[39] But, the Supreme Court did not interpret section 8 as exercising the full extent of Congress's authority under Article Three. In Ex parte Bollman (1807), the Court held that the statutory term "any place out of the jurisdiction of any particular state" applied only to "any river, haven, bason or bay, not within the jurisdiction of any particular state", and only in "those cases there is no court which has particular cognizance of the crime".^[40]

Treason and capital cases

The Crimes Act prescribed death as the exclusive punishment for the crimes of treason, counterfeiting, wilful murder, and aiding the escape of a death row prisoner, as well as piracy, murder, and robbery on the high seas.^[6] Section 29 provided treason and capital defendants a right to a copy of the indictment, a list of the jury (and, in treason cases, witnesses), appointed counsel, and compulsory process:

[A]ny person who shall be accused and indicted of treason, shall have a copy of the indictment, and a list of the jury and witnesses, to be produced on the trial for proving the said indictment, mentioning the names and places of abode of such witnesses and jurors, delivered unto him at least three entire days before he shall be tried for the same; and in other capital offences, shall have such copy of the indictment and list of the jury two entire days at least before the trial: And that every person so accused and indicted for any of the crimes aforesaid, shall also be allowed and admitted to make his full defence by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall, and they are hereby authorized and required immediately upon his request to assign to such person such counsel, not exceeding two, as such person shall desire, to whom such counsel shall have free at all reasonable hours; and every such person or persons accused or indicted of the crimes aforesaid, shall be allowed and admitted in his said defence to make any proof that he or they can produce, by lawful witness or witnesses, and shall have the like process of the court where he or they shall be tried, to compel his or their witnesses to appear at his or their trial, as is usually granted to compel witnesses to appear on the prosecution against them.^[41]

Most of the provisions of section 29 are plainly similar to those of the Sixth Amendment, namely the Information Clause, the Assistance of Counsel Clause, and the Compulsory Process Clause. The Sixth Amendment (and the remainder of the Bill of Rights) had not yet been ratified at the time of the Crimes Act's passage.^[42]

Section 30 provided treason and capital defendants with peremptory challenges and provided for a plea of not guilty in the case that the defendant refused to enter a plea:

if any person or persons be indicted of treason against the United States, and shall stand mute or refuse to plead, or shall challenge peremptorily above the number of thirty-five of the jury; or if any person or persons be indicted of other of the offences herein for which the punishment is declared to be death, if he or they shall also stand mute or will not answer to the indictment, or challenge peremptorily above the number of twenty persons of the jury; the court, in any of the cases aforesaid, shall notwithstanding proceed to the trial of the person or persons so standing mute or challenging, as if he or they had pleaded not guilty, and render judgment thereon accordingly.^[43]

In United States v. Shackleford (1855), the Court held that the section 30's allocation of peremptory challenges controlled, rather than an 1840 statute that required federal jury selection to generally follow state law (and, thus, the prosecutor was given no peremptory challenges in such cases).^[44] Ten years later, Congress abrogated Shackleford, granting prosecutors five peremptory challenges in treason and capital cases (and two in non-capital felony cases); the 1865 act left the defendant's number of peremptory challenges unchanged.^[45]

Section 31 eliminated the benefit of clergy for capital crimes.^[46] Section 33 designated the means of execution as "hanging ... by the neck until dead".^[47]

Perjury indictments

Section 19, applicable to perjury prosecutions under section 18, provided that

in every presentment or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court, or before whom the oath or affirmation was taken, (averring such court, or person or persons to have a competent authority to administer the same) together with the proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned; without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, other than as aforesaid, and without setting forth the commission or authority of the court, or person or persons before whom the perjury was committed.^[48]

and section 20 provided that

in every presentment or indictment for subornation of perjury, or for corrupt bargaining or contracting with others to commit wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, and without setting forth the commmsion or authority of the court, or person or persons before whom the perjttry was committed, or was agreed or promised to be committed.^[49]

Sentencing

Section 24 provided that "no conviction or judgment of any of the offences aforesaid, shall work corruption of blood, or any forfeiture of estate".^[50] This generalized the guarantee of Article Three that "no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted".^[51]

The Crimes Act made no provision for the creation of federal prisons.^[52] Instead, a September 21, 1789 concurrent resolution asked the state legislatures to authorize their prisons to imprison federal prisoners.^[53] The first federal prison was not opened until 1894 at Fort Leavenworth.^[53]

Dissection

Section 4 authorized a court to order the post-execution dissection of the corpse of convicted murderers.^[54] According to David P. Currie, this was the "most controversial provision of the entire statute".^[17] Dissection as punishment had its roots in a 1789 New York statute and a 1752 English law.^[55] Rep. Michael J. Stone of Maryland argued against the inclusion of this provision as cruel.^[56] Currie argues that Congress was on a firm constitutional footing in enacting this provision in relation to murders committed in areas under exclusive federal jurisdiction, but perhaps less so for murders committed on the high seas.^[57]

Diplomatic immunity

Section 25 provided:

[I]f any writ or process shall at any time hereafter be sued forth or prosecuted by any person or persons, in any of the courts of the United States, or in any of the courts of a particular state, or by any judge or justice therein respectively, whereby the person of any ambassador or other public minister of any foreign prince or state, authorized and received as such by the President of the United States, or any domestic or domestic servant of any much ambassador or other public minister, may be arrested or imprisoned, or his or their goods or chattels be distrained, seized or attached, such writ or process shall be deemed and adjudged to be utterly null and void to all intents, construction and purposes whatsoever.^[58]

Section 27 provided a limited exception for private debts contracted by ambassadors prior to the passage of the act.^[59]