Some Consequences of Increased Federal Activity in Law Enforcement

Abstract

The Growth of Federal Criminal Code The First Congress, in its second session, adopted An Act for Punishment of certain Crimes against United States.' It was a modest statute of thirty-three sections, dealing with treason, misprision of treason, felonies in places within exclusive jurisdiction of United States and upon high seas, forgery or counterfeiting of federal paper, stealing or falsifying of records of federal courts, perjury, bribery and obstruction of process in courts, suits involving public ministers of foreign states, and procedure. On October 9, 1942, seven dangerous, longterm convicts, most illustrious of whom was Roger Touhy, escaped from Illinois penitentiary at Stateville. Several days later Federal Bureau of Investigation joined in search for men declaring that federal jurisdiction arose from fact that these case-hardened outlaws had been out of prison more than five days without registering with their draft boards. What transpired between enactment of simple forthright statute of 1790 and slick sophistry of 1942 is an important chapter in long story of an evolving constitutional federalism. Since national government has implied as well as specifically enumerated constitutional powers, there has never been any serious doubt of power of Congress to enact criminal legislation. Indeed, in great case in which principle of implied powers was nailed down, John Marshall cited penal code of United States as an unchallengeable illustration of doctrine, declaring that the good sense of public has pronounced, without hesitation, that power of punishment appertains to sovereignty, and may be exercised whenever sovereign has a right to act, as incidental to his constitutional powers.2 Thus, thriceblessed, by Congress, John Marshall, and good sense of public, federal criminal jurisdiction has steadily expanded from humble beginnings into vast complex of power it is today.3 Since it was decided, at an early date, that there are no federal