RIGHT OF DEFINING AND PUNISHING FOR CRIMES: Exclusive Federal jurisdiction.--Areas over which the Federal Government has acquired exclusive legislative jurisdiction are subject to the exclusive criminal jurisdiction of the United States. Bowen v. Johnston, 306 U.S.19 (1939); United States v. Watkins, 22 F.2d 437 (N.D.Cal 1927). That the States can neither define nor punish for crimes in such areas is made clear in the
case of In re Ladd, 74 Fed. 31 (C.C.N.D.Neb., 1896), (p. 40):
* * * The cession of jurisdiction over a given territory takes the latter from within, and places it without, the jurisdiction of the ceding sovereignty. After a state has parted with its political jurisdiction over a given tract of land, it cannot be said that acts done thereon are against the peace and dignity of the state, or are violations of its laws; and the state certainly cannot claim jurisdiction criminally be reason of acts done at place beyond,or not within, its territorial jurisdiction, unless by treaty or statute it may have retained jurisdiction over its own citizens, and even then the jurisdiction is only over the person as a citizen. * * *
The criminal jurisdiction of the Federal Government extends to private land over which legislative jurisdiction has been vested in the Government, as well as to federally owned lands. United States v. Unzenuta, supra; see also Petersen v. United States, 191 F.2d 154 (C.A. 9, 1951), cert.den., 342 U.S. 885. Indeed, the Federal Government's power derived from exclusive legislative jurisdiction over an area may extend beyond
107the boundaries of the area, as may be necessary to make exercise of the Government's jurisdiction effective; thus, the Federal Government may punish a person not in the exclusive jurisdiction area for concealment of his knowledge concerning the commission of a felony within the area. Cohens v. Virginia, 6 Wheat. 264, 426- 429 (1821).
In Hollister v. United States, 145 Fed. 773 (C.A. 8, 1906), the court said (p. 777):
Instances of relinquishment and acceptance of criminal jurisdiction by state Legislatures and the national Congress, respectively, over forts, arsenals, public buildings, and other property of the United States situated within the states, are common, and their legality has never, so far as we know, been questioned.
On the other hand, while the Federal Government has power under various provisions of the Constitution to define, and prohibit as criminal, certain acts or omissions occurring anywhere in the United States, it has no power to punish for various other crimes, jurisdiction over which is retained by the States under our Federal-State system of government, unless such crimes occur on areas as to which legislative jurisdiction has been vested in the Federal Government. The absence of jurisdiction in a State, or in the Federal Government, over a criminal act occurring in an area as to which only the other of these governments has legislative jurisdiction is demonstrated by the case of United States v. Tully, 140 Fed. 899 (C.C.D.Mont.,
1081905). Tully had been convicted by a State court in Montana of first degree murder, and sentenced to be hanged. The Supreme Court of the State reversed the conviction on the ground that the homicide had occurred on a military reservation over which exclusive jurisdiction was vested in the Federal Government. The defendant was promptly indicted in the Federal court, but went free as the result of a finding that the Federal Government did not have legislative jurisdiction over the particular land on which the homicide had occurred. The Federal court said (id. p. 905):
It is unfortunate that a murderer should go unwhipped of justice, but it would be yet more unfortunate if any court should assume to try one charged with a crime without jurisdiction over the offense. In this case, in the light of the verdict of the jury in the state court, we may assume that justice would be done the defendant were he tried and convicted by any court and executed pursuant to its judgment. But in this court it would be the justice of the vigilance committee wholly without the pale of the law. The fact that the defendant is to be discharged may furnish a text for the thoughtless or uninformed to say that a murderer has been turned loose upon a technicality; but this is not a technicality. It goes to the very right to sit in judgment. * * * These sentiments no doubt appealed with equal force to the Supreme Court of Montana, and it is to its credit that it refused to lend its aid to the execution of one for the commission of an act which, in its judgment, was not cognizable under the laws of its state; but I cannot being myself to the conclusion reached by that able court, and it is upon the judgment and conscience of this court that the matter of jurisdiction here must be decided.
The United States and each State are in many respects separate sovereigns, and ordinarily one cannot enforce the laws of the other.
State and local police have no authority to enter an exclusive Federal area to make investigations, or arrests, for crimes committed within such areas since Federal, not State, offenses are involved. Only Federal law enforcement officials, such as representatives of the Federal Bureau of Investigation and United States marshals and their deputies, would be authorized to investigate such offenses and make arrests in connection with them. The policing of Federal exclusive jurisdiction areas must be accomplished by Federal personnel, and an offer of a municipality to police a portion of a road on such an area could not be accepted by the Federal official in charge of the area, as police protection by a municipality to such an area would be inconsistent with Federal exclusive jurisdiction.
Concurrent Federal and State criminal jurisdiction.--There are, of course, Federal areas as to which a State, in ceding legislative jurisdiction to the United States, has reserved some measure of jurisdiction, including criminal jurisdiction, concurrently to itself. In general, where a crime has been committed in an areas over which the Untied States and a State have concurrent criminal jurisdiction, both governments may try the accused without violating the double jeopardy clause of the Fifth Amendment. Grafton v. United States, 206 U.S.
110333 (1907), held that the same acts constituting a crime cannot, after a defendant's acquittal or conviction in a court of competent jurisdiction of the Federal Government, be made the basis of a second trial of the defendant for that crime in the same or in another court, civil or military, of the same government. However, where the same act is a crime under both State and Federal law, the defendant may be punished under each of them. Hebert v. Louisiana, 272 U.S. 312 (1926). It was stated by the court in United States v. Lanza, 260 U.S. 377 (1922), (p. 382):
It follows that an act denounced as a crime by both national and state sovereignties is an offence against the peace and dignity of both and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the Federal Government, Barron v. Baltimore, 7 Pet. 243, and the double jeopardy therein forbidden is a second prosecution under authority of the Federal Government after a first trial for the same offense under the same authority. * * *
It is well settled, of course, that where two tribunals have concurrent jurisdiction that which first takes cognizance of a matter has the right, in general, to retain it to a conclusion, to the exclusion of the other. The rule seems well stated in Mail v. Maxwell, 107 Ill. 554 (1883),(p. 561):
Where one court has acquired jurisdiction, no other court, State or Federal, will, in the absence of supervising or appellate jurisdiction, interfere, unless in pursuance of some statute, State or Federal, providing for such interference.
111Other courts have held similarly. There appears to be some doubt concerning the status of a court-martial as a court, within the meaning of the Judicial Code, however.
Law enforcement on areas of exclusive or concurrent jurisdiction.--The General Services Administration is authorized by statute to appoint its uniformed guards as special policemen, with the same powers as sheriffs and constables to enforce Federal laws enacted for the protection of persons and property, and to prevent beaches of the peace, to suppress affrays or unlawful assemblies, and to enforce rules made by the General Services Administration for properties under its jurisdiction; but the policing powers of such special policemen are restricted to Federal property over which the United States has acquired exclusive or concurrent jurisdiction. Upon the application of the head of any Federal department or agency having property of the United States under its administration or control and over which the United States has exclusive or concurrent jurisdiction, the General Services Administration is authorized by statute to detail any such special policeman for the protection of such property and, if it is deemed desirable, to extend to such property the applicability of regulations governing property promulgated by the General Services Administration. The General Services Administration is authorized by the same statute to utilize the facilities of existing Federal law-enforcement agencies, and, with the consent of any State or local agency, the facilities and services of such State or local law enforcement agencies.
Although the Department of the Interior required protection for an installation housing important secret work, the General
112Services Administration was without authority to place uniformed guards on the premises in the absence in the United States of exclusive or concurrent jurisdiction over the property, and notwithstanding the impropriety of permitting the policing of the property by local officials, if they were willing, without necessary security clearances.
Civilian Federal employees may be assigned to guard duty on Federal installations, but there is no Federal statue (other than that appertaining to General Services Administration and three statutes of even less effect--16 U.S.C. 559 (Forest Service), and 16 U.S.C. 10 and 10a (National Park Service)) conferring any special authority on such guards. They are not peace officers with the usual powers of arrest; and have no greater powers of arrest than private citizens. As citizens, they may protect their own lives and property and the safety of others, and as agents of the Government they have a special right to protest the property of the Government. For both these purposes they may bear arms irrespective of State law against bearing arms. Such guards, unless appointed as deputy sheriffs (where the State has at least concurrent criminal jurisdiction), or deputy marshals (where the United States has at least concurrent criminal jurisdiction), have no
113more authority than other private individuals so far as making arrests is concerned.
State and local officers may, by special Federal statute, preserve the peace and make arrests for crimes under the laws of States, upon immigrant stations, and the jurisdiction of such officers and of State and local courts has been extended to such stations for the purposes of the statute.
Partial jurisdiction.--In some instances States in granting to the Federal Government a measure of exclusive legislative jurisdiction over an area have reserved the right to exercise, only by themselves, or concurrently by themselves as well as by the Federal Government, criminal jurisdiction over the area. In instances of complete State retention of criminal jurisdiction, whether with respect to all matters or with respect to a specified category of matters, the rights of the States, of the United States, and of any defendants, with respect to crimes as to which State jurisdiction is so retained are as indicated in this chapter for areas as to which the Federal Government has no criminal jurisdiction. In instances of concurrent State and Federal criminal jurisdiction with respect to any matters the rights of all parties are, of course, determined with respect to such matters according to the rules of law generally applicable in areas of concurrent jurisdiction. Accordingly, there is no
114body of law specially applicable to criminal activities in areas under the partial legislative jurisdiction of the United States.
State criminal jurisdiction retained.--State criminal jurisdiction extends into areas owned or occupied by the Federal Government, but as to which the Government has not acquired exclusive legislative jurisdiction with respect to crimes. And as to many areas owned by the Federal Government for its various purposes it has not acquired legislative jurisdiction. The Forest service of the Department of Agriculture, for example, in accordance with a provision of Federal law (16 U.S.C. 480), has not accepted the jurisdiction proffered by the statutes of many States, and the vast majority of Federal forest lands are held by the Federal Government in a proprietorial status only.
The Federal Government may not prosecute for ordinary crimes committed in such areas. Federal civilians who may
115be appointed as guards in the areas do not have police powers, but possess only the powers of arrest normally had by any citizen unless they receive appointments as State or local police officers.
Acts committed partly in area under State jurisdiction.--Where a crime has been in part committed in a Federal exclusive legislative jurisdiction area, the States in some instances have asserted jurisdiction. It was held in Commonwealth v. Rohrer, 37Pa. D. and C. 410 (1937), that a dealer furnishing milk for use at a veterans' hospital was subject to the provisions of the Milk Control Board Law. The court was of the opinion that while the State had no jurisdiction with respect to a crime committed wholly within the area over which legislative jurisdiction had been ceded to the Federal Government for the hospital, it did have jurisdiction of a crime the essential elements of which were committed within the State, even though other elements thereof were committed within the ceded territory. Two more recent decisions of the Supreme Court (i.e., Penn Dairies, Inc., et al. v. Milk Control Commission of Pennsylvania, 318 U.S. 261 (1943), and Pacific Coast Dairy, Inc. v. Department of Agriculture of California, 318 U.S. 285 (1943)) suggest that only where the federal Government does not have exclusive legislative jurisdiction would a State have such authority. It has been held, however, that even where acts are done wholly on Federal property, a State property, a State prosecution is proper where the effects of the acts are felt in an area under State jurisdiction. People v. Commonwealth Sanitation Co., 1007 N.Y.S.2d 982 (1951); cf. State v. Kelly, 76 Me. 331 (1884).
On the other hand, transportation through a State for delivery to an area, within the boundaries of the State, which is
116under the exclusive jurisdiction of the United States has been held not to be a violation of laws prohibiting the importation into the State of the matter transported.
Retrial on change in jurisdiction.--Where a person is convicted of a crime in a State court and the territory in which the crime was committed is subsequently ceded to the United States, he may be properly retried or sentenced in the State court, it was held in Commonwealth v. Vaughn, 64 Pa. D & C. 320 (1948). The court said (p. 322):
* * * The act when done was a violation of the law of this Commonwealth which is still in full force and effect, done within its territorial jurisdiction; the Commonwealth had jurisdiction of the subject matter and obtained jurisdiction of the person by proper process, and its proper officer proceeded with legal action in the proper court, which court has never relinquished its jurisdiction, so obtained. * * * When the jurisdiction of a court has legally and properly attached to the person and subject matter in a legal proceeding, such jurisdiction continues until the cause is fully an completely disposed of * * *.
The court points out that if the subject matter (in this case, the crime) is wiped out the court loses its jurisdiction. The crime would no longer exist and no one can be punished for a crime which does not exist at time of trial therefor, or of meting out punishment.
SERVICE OF STATE CRIMINAL PROCESS: In general.--That State criminal process may extend into areas owned or occupied by the United States but not under its legislative jurisdiction is well set out in the case of Cockburn v. Willman, 301 Mo. 575, 257 S.W. 458 (1923), (p. 587):
The mere fact that he was territorial within the confines of a Government reservation at the time the warrant was served upon him did not render him immunity exists only when it appears in the cession by the State to the National Government that the former has divested itself of all power over the place or territory in regard to the execution of process or the arrest and detention of persons found thereon who are charged with crime.
Right by Federal grant.--The immunity of persons in areas
under the exclusive jurisdiction of the federal Government from
service upon them of State process occasioned great concern at the
constitutional ratifying conventions that such areas might become
havens for felons. At an early date, Congress provided that
in lighthouse and certain related areas criminal and civil process
might be served by the States notwithstanding the acquisition of
exclusive jurisdiction by the Federal Government over such sites.
Right by State reservation.--States have commonly included in
their consent and cession statutes a reservation of the power to
serve civil and criminal process in the areas to which such
statutes relate, and all such State statutes which are currently in
effect contain such reservations. The words of reservation
vary, but usually are contained in a clause following the cession
language and are worded approximately as follows:
* * * this state, however, reserving the right to execute
its process, both criminal and civil, within such territory.
Reservations to serve process not inconsistent with exclusive jurisdiction.--The reservation by a State of the right to serve criminal and civil process in an area over which such Federal jurisdiction exists is not, however, inconsistent with the exercise by the Federal Government of exclusive jurisdiction over the area, and a State does not by such a reservation acquire jurisdiction to punish for a crime committed within a ceded area. United States v. Travers, 28 Fed. Cas. 204, No. 16,537 (C.C.D.Mass., 1814); United States v. Davis, 25 Fed. cas. 646, No. 14,867 (C.C.D.R.I., 1819). Indeed, it has been said that process served under a reservation becomes, quo ad hoc, process of the United States, and that when a State officer acts to execute process on a Federal enclave he acts under the authority of the United States, but these statements appear inconsistent with the generally prevailing view of reservations to serve process as retention by the State of its sovereign authority. Even, as is often the case, where a State retains "concurrent jurisdiction," to serve civil
119and criminal process, or the right to serve such process as if jurisdiction over lands "had not been ceded," the quoted words have been construed not to give the State jurisdiction to punish persons for offenses committed within the ceded territory. United States v. Cornell, 25 Fed. Cas. 646, No. 14,867 (C.C.D.R.I., 1819); Lasher v. State, 30 Tex. Cr.App. 387 17 S.W. 1064 (1891); Commonwealth v. Clary, 8 Mass. 72 (1811). In the Cornell case, supra, the United States purchased certain lands in Rhode Island for military purposes. The State gave its consent to these purchases, reserving, however, the right to execute all civil and criminal processes on the ceded lands, in the same way as if they had not been a reservation of concurrent jurisdiction by the State. The court answered this in the negative as follows (pp. 648-649):
In its terms it certainly does not contain any reservation of concurrent jurisdiction or legislation. It provides only that civil and criminal processes, issued under the authority of the state, which must of course be for acts done within, and cognizable by, the state, may be executed within the ceded lands, notwithstanding the cession. Not a word is said from which we can infer that it was intended that the state should have a right to punish for acts done within the ceded lands. The whole apparent object is answered by considering the clause as meant to prevent these lands from becoming a sanc-
tuary for fugitives from justice, for acts done within the acknowledged jurisdiction of the state. Now there is nothing incompatible with the exclusive sovereignty or jurisdiction of one state, that it should permit another state, in such cases, to execute its processes within its limits * * *.
And reservation of right to "execute" process, it has been held, retains no more authority in the State than a reservation to "serve" process, even in the absence of the word "exclusive" in the description of the quantum of jurisdiction ceded to the United States. Rogers v. Squier, F.2d 948 (C.A. 9, 1946), cert. den., 330 U.S. 840.
The Supreme Court of Nevada has held (State ex rel. Jones v. Mack, 23 Nev. 359, 47 Pac. 763 (1897)) that exception from a cession of the "administration of the criminal laws" reserved to the State only the right to serve process, and a similar holding with respect to a similar California statute was once made by a Federal court; but at least on five occasions Attorneys General of the United States have ruled that such language gave a State cognizance of criminal offenses against its laws in the place ceded. It has also been held that a reservation to serve process for "any cause there [in the ceded area] or elsewhere in the state arising, where such cause comes properly under the jurisdiction of the laws of this state," merely reserved he right to serve process, and was not inconsistent with a transfer of exclusive jurisdiction.
In People v. Hillman, 246 N.Y. 467, 159 N.E. 400 (1927), it was held that the courts of the State of New York had no jurisdiction over a robbery committed on a highway which passed through the West Point Military Reservation. Ownership of the land had been acquired by the United States, and the State had ceded jurisdiction over the land, reserving the
121right to serve civil and criminal process thereon and the right of occupancy of the highways. The latter reservation, the court said, should not be construed as a reservation of political dominion and legislative authority over the highways but meant merely that the State reserved the right to appropriate for highway purposes the customary proportion of land embraced in the tract.
Warrant of arrest deemed process.--By the very nature of the purposes which the State reservations to serve criminal and civil process were intended to carry out, such reservations include the right to execute a warrant of arrest, including a warrant issued on a request for extradition. Such warrants are a form of legal process. However, various Federal instrumentalities have regulations governing the manner in which such process shall be served, and even in the absence of formal regulations on the subject, the service of process may
122not be accomplished in manner such as to constitute an interference with an instrumentality of the Federal Government.
Arrest without warrant not deemed service of process.--It has been held that an arrest without a warrant may not be effected by a State police officer in an area under exclusive Federal jurisdiction, for a crime committed off the area, since such an arrest does not involve service of process. A reservation to make such arrest might, of course, be made. State officials may enter an exclusive Federal jurisdiction area, to make an investigation related to an offense committed off the area, only in manner such as will not interfere with an instrumentality of the Federal Government, and in accordance with any Federal regulations for this purpose.
Coroner's inquest.--Various authorities have held that a State cannot render coroner service in an area under exclusive Federal jurisdiction, but in an early case (County of Allegheny v. McClung, 53 Pa. 482 (1867)), it was suggested that a coroner's inquest might constitute criminal process.
Writ of habeas corpus.--In three early cases a
the right to serve process was construed as giving authority to a
State to serve a writ of habeas corpus upon a federal military
officer with respect to his alleged illegal detention, under color
of Federal authority, of a person upon a Federal enclave (State v.
Dimick, 12 N.H. 194 (1841); In re Carlton, 7 Cow. 471 (N.Y., 1827);
and Commonwealth v. Cushing, 11 Mass. 67 (1814))> The lack of
jurisdiction is State courts to inquire by habeas corpus into the
propriety of the confinement of persons held under the authority or
color of authority of the United States has since been firmly fixed
and confirmed. Ableman v. Booth, 21 How. 506 (1859), In re Tarble,
13 Wall. 397 (1871), Johnson v. Eisentrager, 339 U.S. 763 (1950).
Nor, it would seen, may a writ of habeas corpus out of a State
court in any case lie under the usual State reservation to serve
process with reference to a person held in an area under exclusive
Federal jurisdiction, although his holding be not under Federal
authority (e.g., the holding of a child by an adult claiming
parental authority), since such a reservation permits service only
with respect to matters arising outside the exclusive jurisdiction
area. It has been held, on the other hand, that a writ of habeas
corpus properly might issue from a Federal court to discharge from
the custody of a State official a prisoner held for a crime
indicated to have been committed in an area which, while within the
State, was under the exclusive legislative jurisdiction of the
United States. Ex parte Tatem, 23 Fed. Cas. 708, No. 13,759
(E.D.Va., 1877). The court issued the writ reluctantly in the
Tatem case, however, and in In re Bradley, 96 Fed. 969
(C.C.S.D.Cal., 1898), the court said (p. 970):
Unquestionably, the circuit and district courts of the United States may, on habeas corpus, discharge from custody one who is restrained of his liberty in violation of the constitution of the United States, even though
he is so restrained under state process to answer for an alleged crime against the state. Rev. St. Sec. 753. This power, however, in the federal judiciary, "to arrest the arm of the state authorities, and to discharge a person held by them, is one of great delicacy" (Ex parte Thompson, 23 Fed. Cas. p. 1016), and ought not to be exercised in any case where suitable relief can be had through the regular procedure of the state tribunals * * *.
The court said further (p. 971):
Assuming--without, however, deciding--that the allegations of the petition, in the case at bar, show, that the imprisonment of the petition is without due process of law, and violative of the federal constitution, they do not, as held in Ex parte Royall, supra, "suggest any reason why the state court of original jurisdiction may not, without interference upon the part of the courts of the United States, pass upon the question which is raised," as to the lack of jurisdiction in the state government over the land or place in question.
The Supreme Court has ruled that whether the United States had exclusive legislative jurisdiction over land where an alleged crime was committed is to be determined by the court to which the indictment was returned,, and no by writ of habeas corpus in connection with proceedings for the removal of the accused from another jurisdiction for trial. Rodman v. Pothier, 264 U.S. 399 (1924). Presumable this rule would apply to extradition as well as to removal proceedings.
FEDERAL CRIMES ACT OF 1790: Effects limited.--Among the problems which early resulted from the creation of Federal enclaves was that of the administration of criminal law over these areas. Once these areas were withdrawn from State jurisdiction, in the absence of congressional legislation they were left without criminal law. Congress, in order to correct this situ-
125ation, passed the first Federal Crimes Act, in 1790. However, this act defined only the more serious crimes, such as murder, manslaughter, maiming, etc., punishing their commission in areas under the "sole and exclusive jurisdiction of the United States." Persons who committed other offenses in these areas escaped unpunished.
The gravity of the situation was indicated by Joseph Story in his comment on a bill which he wrote inn 1816 "to extend the judicial system of the United States." He stated, in part, as follows:
* * * Few, very few of the practical crimes, (if I may so say,) are now punishable by statutes, and if the courts have no general common law jurisdiction (which is a vexed question,) they are wholly dispunishable. The State Courts have no jurisdiction of crimes committed on the high seas, or in places ceded to the United States. Rapes, arsons, batteries, and a host of other crimes, may in these p;aces be now committed with impunity. Surely, in naval yards, arsenals, forts, and dockyards, and on the high seas, a common law jurisdiction is indispensable. Suppose a conspiracy to commit treason in any of these places, by civil persons, how can the crime be punished? These are cases where the United States have an exclusive local jurisdiction. And can it be less fit that the Government should have power to protect itself in all other places where it exercises a legitimate authority? That Congress have power to provide for all crimes against the United States, is incontestable. * * *
126These Federal areas within the States over which Congress had exclusive jurisdiction had become, it would seem from Story's comment, a criminals' paradise. The act of 1790, supra, defining and punishing for certain crimes on such areas left many grossly reprehensible acts undefined and unpunished, the States no longer had jurisdiction over these areas, and the Federal courts had no common law jurisdiction.
ASSIMILATIVE CRIMES STATUTES: Assimilative Crimes Act of 1825.-- In order, therefore, to provide a system of criminal law for ceded areas, Congress, in 1825, passed the first assimilative crimes statute. This was section 3 of the act of March 3, 1825, 4 Stat. 115, which provided:
AND BE IT FURTHER ENACTED, That, if any offence shall be committed in any of the places aforesaid, the punishment of which offence is not specially provided for by any law of the United States, such offence shall, upon a conviction in any court of the United States having cognisance thereof, be liable to, and receive the same punishment as the laws of the state in which such fort, dock-yard, navy-yard, arsenal, armory, or magazine, or other place, ceded as aforesaid, is situated, provide for the like offence when committed within the body of any county of such state.
Mr. Webster, who sponsored this bill,is indicated to have explained the purpose of its third section as follows (register of Debates in Congress, 18th Cong., 2d Sess., Jan. 24, 1825, Gales & Seaton, Vol. I, p. 338):
* * * it must be obvious, that, where the jurisdiction of a small place, containing only a few hundreds of people, (a navy yard for instance,) was ceded to the United States, some provision was required for the punishment of offences; and as, from the use to which the place was to be put, some crime were likely to be more frequently committed than others, the committee had thought it sufficient to provide for these, and then to leave the residue to be punished by the laws of the state in which the yard, &c. might be. He [Webster] was persuaded that the people would not view it as an hardship, that the great class of minor offences should continue to be punished in the same manner as they had been before the cession.
In United States v. Davis, decided in 1829, the court stated the purpose of the act of 1825, at page 784:
The object of the act of 1825 was to provide for the punishment of offences committed in places under the jurisdiction of the United States, where the offence was not before punishable by the courts of the United States under the actual circumstances of its commission. * * *
The act of 1825 was construed by the Supreme Court in United States v. Paul, 6 Pet. 141 (1832). An act of 1829 of the New York legislature was held not to apply under the Assimilative Crimes Act to the West Point Military Reservation, situated in the State of New York. Chief Justice Marshall ruled that the act of 1825 was to be limited to the adoption of States laws in effect at the time of its enactment. Any State laws enacted after March 3, 1825, could not be adopted by the act and would therefore be of no effect in a Federal enclave. It appeared, therefore, that the assimilative crimes statute would have to be re-enacted periodically in order to keep the criminal laws of Federal enclaves abreast with State criminal laws.
In United States v. Barney, 24 Fed. Cas. 1011, No. 14,524 (C.C.S.D.N.Y., 1866), the court held that the act of 1825 applied only to those places which were under the exclusive jurisdiction of the United States at the time the act was passed. Therefore, the act would not apply to any areas ceded to the Federal Government by the States after March 3, 1825. It was similarly apparent then that any areas ceded by the States to the Federal Government after the date of the act of 1825 were left without criminal law except as to those few offenses defined in the Federal Crimes Act of 1790, supra.
Assimilative Crimes Act of 1866.--The Paul case limited the act as to time, and the Barney case as to place. The Congress completely remedied the situation brought about by the Barney case, and alleviated the problems raised by the Paul case, by the act of April 5, 1866 (14 Stat. 12, 13), re-enacting an Assimilative Crimes Act. This law extended the act to "any place which has been or shall hereafter be ceded" to the United States. It also spelled out what had in any event probably been the law--that no subsequent repeal of any State penal law should affect any prosecution for such offense in any United States court. Accordingly, though a State penal law was re-pealed that law still remained as part of the Federal criminal code for the Federal area.
Re-enactments of Assimilative crimes Act, 1898-1940.--The next re-enactment of the Assimilative Crimes Act came on July 7, 1898 (30 Stat. 717). The constitutionality of the 1898 act was sustained in Franklin v. United States, 216 U.S. 559 (1910), writ of error dism., 220 U.S. 624. This case held that the act did not delegate to the States authority in any way to change the criminal laws applicable to places over which the United States had jurisdiction, adopting only the State law in exist-
129ence at the time the 1898 act was enacted, and that the act was not an unconstitutional delegation of authority be Congress.
The following statements were made by Chief Justice White in United v. Press Publishing Company, 219 U.S. 1 (1911), referring to the 1898 statute (page 9):
It is certain, on the face of the quoted section, that it exclusively relates to offenses committed on United States reservations, etc., which are "not provided for by any law of the United States," and that as to such offenses the state law, when they are by that law defined and punished, is adopted and made applicable. That is to say, while the statute leaves no doubt where acts are done on reservations which are expressly prohibited and punished as crimes by a law of the United States, that law is dominant and controlling, yet, on the other hand, where no law of the United States has expressly provided for the punishment of offenses committed on reservations, all acts done on such reservations which are made criminal by the laws of the several States are left to be punished under the applicable state statutes. When these results of the statute are borne in mind it becomes manifest that Congress, in adopting it, sedulously considered the two-fold character of our constitutional government, and had in view the enlightened purpose, so far as the punishment of crime was concerned, to interfere as little as might be with the authority of the States on that subject over all territory situated within their exterior boundaries, and which hence would be subject to exclusive state jurisdiction but for the existence of a United States reservation. In accomplishing these purposes it is apparent that the statute, instead of fixing by its own terms the punishment for crimes committed on such reservations which were not previously provided for by a law of the United States, adopted and wrote in the state law, with the single difference that the offense,
although punished as an offense against the United States, was nevertheless punishable only in the way and to the extent that it would have been punishable if the territory embraced by the reservation remained subject to the jurisdiction of the State. * * *
The Assimilative Crimes Act of 1898 became section 289 of the Criminal Code by the act of March 4, 1909 (35 Stat. 1088). In referring to section 289 the court, in Puerto Rico v. Shell Co., 302 U.S. 253 (1937), said (page 266):
Prosecutions under that section, however, are not to enforce the laws of the state, territory or district, but to enforce the federal law, the details of which, instead of being recited, are adopted by reference.
The constitutionality of the act was upheld in Washington, P. and C. Ry. v. Magruder, 198 F. 218 (D.Md., 1912). The court said (p. 222):
Congress may not empower a state Legislature to create offenses against the United States or to fix their punishment. Congress may lawfully declare the criminal law of a state as it exists at the time Congress speaks shall be the law of the United States in force on particular portions of the territory of the United States subject to the latter's exclusive criminal jurisdiction. * * *
Section 289 of the Criminal Code was subsequently reenacted on three occasions:
1. Act of June 15, 1933, 48 Stat. 152, adopting State laws in
effect on June 1, 1933. 2. Act of June 20, 1935, 49 Stat. 394, adopting State laws in
effect on April 1, 1935. 3. Act of June 6, 1940, 54 Stat. 234, adopting State laws in
effect on February 1, 1940.
Subsequently the act of June 11, 1940 (54 Stat. 304), extended the scope and operation of the assimilative crimes statute by amending section 272 of the Criminal Code so that the criminal statutes set forth in chapter 11, title 18, United States Code, including the assimilative crimes statute, applied to lands under the concurrent as well as the exclusive jurisdiction of the United States.
Assimilative Crimes Act of 1948.--The present assimilative crimes statute was enacted on June 25, 1948, in the revision and codification into positive law of title 18 of the United States Code. It now constitutes section 13 of title 18 of the Code, and reads as follows:
Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
Section 7 of title 18, United States Code, referred to in section 13, merely defines the term "special maritime and territorial jurisdiction of the United States," in pertinent part as follows:
(3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.
The language of the present assimilative crimes statute, it may be noted, does away with the requirement for further periodic re-enactment of the law to keep abreast with changes in State penal laws. The words "by the laws thereof in force at the time of such act or omission" make such re-enactments unnecessary. The previously existing section 289 of the Criminal Code, through its several re-enactments, supra, need, "by the laws thereof, now in force." Accordingly, under the language of the present statute the State law in force at the time of the act or omission governs if there was no pertinent Federal law. All changes, modifications and repeals of State penal laws are adopted by the Federal Criminal Code, keeping the act up to date at all times.
INTERPRETATIONS OF ASSIMILATIVE CRIMES ACT: Adopts State law.-- It is emphasized that the Assimilative Crimes Act adopts the State law. The Federal courts apply not State penal laws, but Federal criminal laws which have been adopted by reference.
Operates only when offense is not otherwise defined.--The Assimilative Crimes Act operates only when the Federal Criminal Code has not defined a certain offense or provided for its punishment. Furthermore, when an offense has been defined and prohibited by the Federal code the assimilative crimes statute cannot be used to redefine and enlarge or narrow the scope of the Federal offense. The law applicable in this
133matter is clearly set out in Williams v. United States, 327 U.S. 711 (1946), (p. 717):
We hold that the Assimilative Crimes Act does not make the Arizona statute applicable in the present case because (1) the precise acts upon which the conviction depends have been made penal by the laws of congress defining adultery and (2) the offense known to arizona as that of "statutory rape" has been defined and prohibited by the Federal Criminal Code, and is not to be redefined and enlarged by application to it of the Assimilative Crimes Act. The fact that the definition of this offense as enacted by Congress results in a narrower scope for the offense than that given to it by the State, does not mean that the congressional definition must give way to the State definition. * * * The interesting legislative history of the Assimilative Crimes Act discloses nothing to indicate that, after Congress has once defined a penal offense, it has authorized such definition of it. It has not even been suggested that a conflicting State definition could give a narrower scope to the offense than that given to it by Congress. We believe that, similarly, a conflicting State definition does not enlarge the scope of the offense defined by Congress. The Assimilative Crimes Act has a natural place to fill through its supplementation of the Federal Criminal Code, without giving it the added effect of modifying or repealing existing provisions of the Federal Code.
The Assimilative Crimes Act has a certain purpose to fulfill and its application should be strictly limited to that purpose. On the other hand, it has been applied when there has been the slightest gap in Federal law. In Ex parte Hart, 157 Fed. 130 (D.Ore, 1907) the court, in interpreting the act of July 7, 1898, said (p. 133):
When, therefore, section 2 declares that when any offense is committed in any place, the punishment for which is not provided for by any law of the United States, it comprehends offenses created by Congress where no punishment is prescribed, as well as offenses created by state law, where none such is inhibited by Congress. So that the latter section is as comprehensive and far-reaching as the former, and is in practical effect the same legislation.
Includes common law.--It has also been held that the Assimilative Crimes Act adopted not only the statutory laws of a State, but also the common law of the State as to criminal offenses. United States v. Wright, 28 Fed. Cas. 791, No. 16,774 (D. Mass., 1871).
Excludes statute of limitations.--The Assimilative Crimes Act does not, however, incorporate into the Federal law the general statute of limitations of a State relating to crimes; question on this matter arose in United States v. Andem, 158 Fed. 996 (D.N.J., 1908), where the court held that the Federal statute of limitations would apply, the State statute of limitations being a different statute from that which defined the offense.
Excludes law on sufficiency of indictments.--In McCoy v. Pescor, 145 F.2d 260 (C.A. 8, 1944), cert. den., 324 U.S. 868 (1945), question arose as to the sufficiency of Federal indictments under a Texas statute adopted by the Assimilative Crimes Act. The court held (p. 262):
Petitioner argues that the question here is controlled by the decisions of the Texas courts regarding the sufficiency of indictments under the adopted Texas statute. * * * The Texas decisions, however, are not controlling. Prosecutions under 18 U.S.C.A. Sec. 468, "are not to enforce the laws of the state, territory, or district,
but to enforce the federal law, the details of which, instead of being recited, are adopted by reference." * * *
This is amplified in a discussion concerning the Assimilative Crimes Act in 22 Calif.L.Rev. 152 (1934).
Offenses included.--The overwhelming majority of offenses committed by civilians on areas under the exclusive criminal jurisdiction of the United States are petty misdemeanors (e.g., traffic violations,drunkenness). Since these are not define them by regulations is limited to a few Federal administrators, their commission usually can be punished only under the Assimilative Crimes Act. The act also has invoked to cover a number of serious offenses defined by State, but not Federal law.
Offenses not included.--The Assimilative Crimes act will not operate to adopt any State penal statutes which are in conflict with Federal policy as expressed by acts of Congress or by valid administrative regulations. In Air Terminal Services, Inc. v. Rentzel, 81 F.Supp. 611 (E.D.Va., 1949), a Virginia statute provided for segregation of white and colored races in places of public assemblage and entertainment. A regulation of the Civil Aeronautics Administrator prohibited segregation at the Washington National airport located in Virginia. The airport was under the exclusive criminal jurisdiction of the United States. The question presented was whether the Virginia statute was adopted by the Assimilative Crimes Act, thus rendering the Administrator's regulation invalid. The court held, at page 612:
The fundamental purpose of the assimilative crimes act was to provide each Federal reservation a criminal code for its local government; it was intended "to use local statutes to fill in gaps in the federal Criminal Code." It is not to be allowed to override other "federal policies as expressed by Acts of Congress" or by valid administrative orders, Johnson v. Yellow Cab Co., 321 U.S. 383, * * * and one of those ""federal policies" has been the avoidance of race distinction in Federal matters. Hurd v. Hodge, 334 U.S. 24, 34, 68 S.Ct. 847. The regulation of the Administrator, who was authorized by statute, Act of June 29, 1940, 54 Stat. 686, to promulgate rules for the Airport, is but an additional declaration and effectuation of that policy, and therefore its issuance is not barred by the assimilative crimes statute.
In Nash v. Air Terminal Services, Inc., 85 F.Supp. 545 (E.D.Va., 1949), decided on the basis of facts existing before the Administrator's regulation was issued, it was held that the Virginia segregation statute had been adopted by the Assimilative Crimes Act, and did apply to the National Airport. However, it was held that once the regulation was promulgated the State statute was no longer enforceable at the airport. The court said (p. 548):
Too, the court is of the opinion that the Virginia statute already cited was then applicable to the restaurants and compelled under criminal penalties the separation of the races. The latter became a requirement of the federal law prevailing on the airport, by virtue of the Assimilative Crimes Act, supra, and continued in force until the promulgation, on December 27, 1948, by the Administrator of Civil Aeronautics of his regulation expressing a different policy. * * *
When lands are acquired by the United States in a State for a Federal purpose, such as the erection of forts, arsenals or other public buildings, these lands are free, regardless of their
137legislative jurisdictional status, from such interference of the State as would destroy or impair the effective use of the land for the Federal purpose. Such is the law with reference to all instrumentalities created by the Federal Government. Their exemption from State control is essential to the independence and sovereign authority of the United States within the sphere of its delegated powers. Fort Leavenworth R.R. v. Lowe, 114 U.S. 525 (1885); James v. Dravo Contracting Company, 302 U.S. 134 (1937).
In providing for the carrying out of the functions and purposes of the Federal government, Congress on numerous occasions has authorized administrative officers or boards to adopt regulations to effect the will of Congress as expressed by Federal statutes. For example, the Secretary of the Interior is authorized to make rules and regulations for the management of parks, monuments and reservations under the jurisdiction of the National Park Service (16 U.S.C. 551); the Administrator of General Services is authorized to make regulations governing the use of Federal property under his control (40 U.S.C. 31a); and the head of each Department of the Government is authorized to prescribe regulations, not inconsistent with laws, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use and preservation of the records, papers, and property appertaining to it (5 U.S.C. 22). The law is well settled that any such regulation must meet two fundamental tests: (1) it must be reasonable and appropriate (Manhattan Co. v. Commissioner, 297 U.S. 129, 134 (1936); International Ry. v. Davidson, 257 U.S. 506, 514 (1922); Commissioner of Internal
138Revenue v. Clark, 202 F.2d 94, 98 (C.A. 7, 1953); Krill v. Arma Corporation, 76 F.Supp. 14 17 (E.D.N.Y., 1948)), and (2) it must be consistent not only with the statutory source of authority, but with the other Federal statutes and policies (Manhattan Co. v. Commissioner, supra; International Ry. v. Davidson, supra; Johnson v. Keating, 17 F.2d 50, 52 (C.A. 1, 1926); In re Merchant Mariners Documents, 91 F.Supp. 426, 429 (N.D.Cal., 1949); Peoples Bank v. Eccles, 161 F.2d 636, 640 (D.C.App., 1947), rev'd. on other grounds, 333 U.S. 426 (1948)).
It may be assumed that a Federal regulation in conflict with a State law will nevertheless fail to prevent the adoption of the State law under the Assimilative Crimes Act, or to terminate the effectiveness of the law, unless the regulation meets the fundamental tests indicated above. However, there appear to be no judicial decisions other than the Rentzel and Nash cases, supra, which both indicated a regulation to be valid that touch upon the subject. No reported judicial decision appears to exist upholding the effectiveness, under the Assimilative Crimes Act, of a primarily regulatory statute containing criminal provisions. Liquor licensing laws, zoning laws, building codes, and laws controlling insurance solicitation, when these provide criminal penalties for violations, are such as are under consideration.
On the other hand, no judicial decision has been discovered in which it has been held that a regulatory statute of the State which was the former sovereign was ineffective in an area under the exclusive jurisdiction of the Federal Government for the
139reason that the Assimilative Crimes Act did not apply to federalize such statutes. Several cases have from time to time been cited in support of the theory that the act does not apply to criminal provisions of regulatory State statutes, but in each case the decision of the court actually was based on other grounds, whatever the dicta in which the court may have indulged.
Collins v. Yosemite Park Co., 304 U.S. 518 (1938), involved an attempt by a State body to license and control importation and sale of liquor in an area under partial (denominated "exclusive" in the opinion) Federal jurisdiction, where a right to impose taxes had been reserved by the State. While the court found unenforceable by the State the regulatory provisions of State law attempted to be enforced, it seems clear that it did so on the ground that the State's reservation to tax did not reserve to it authority to regulate, taxation and regulation being essentially different; there was no question involved as to whether the same regulatory statutes might have been enforced as Federal law by a Federal agency under the Assimilative Crimes Act.
Petersen v. United States, 191 F.2d 154 (C.A. 9, 1951), cert. den., 342 U.S. 885, decided that legislative jurisdiction had been transferred from a State to the United States with respect to a privately owned area within a national park, and on this basis the court held invalid a license issued by the State, contrary to Federal policy, for sale of liquor on the area. As in the Collins case, this was a disapproval of a State attempt to exercise State authority in a matter jurisdiction over which had been ceded to the Federal Government.
In Crater Lake Nat. Park Co. v. Oregon Liquor Control Com'n, 26 F.Supp. 363 (D.Ore., 1939), the court interpreted the Collins case as holding that "the regulatory features of the
140California Liquor Act are not applicable to Yosemite National Park," and called attention to the similarity in the facts involved in the two cases. But in the Crater Lake Nat. Park Co. case there was raised for the first time, by motion for issuance injunction, the question whether the Assimilative crimes Act effects the federalization of regulatory provisions of State law; this question the court did not answer, holding that its resolution should occur through a criminal proceeding and that there was no ground for injunctive relief.
The case of Birmingham v. Thompson, 200 F.2d 505 (C.A. 5, 1952), like the Collins and Petersen cases, resulted in a court's disapproval of a State's attempt to exercise State regulatory authority in a matter jurisdiction as to which had been transferred to the Federal Government. Here it was a municipality (under State- derived authority, of cause) which sought to impose the provisions of a building code, particularly the requirement for a build its incidental fee, upon a Federal contractor, and the court held that a State reservation of taxing power did not extend to permit State control of building. Again, there was involved no question as to whether the Assimilative Crimes Act federalized State regulatory statutes.
In the case of Johnson v. Yellow Cab Transit Co., 321 U.S. 383 (1944), there was involved a State seizure of liquor in transit through State territory to an area under exclusive Federal jurisdiction. The court's decision invalidating the seizure was based on the fact that no State law purported to prohibit or regulate a shipment into or through the State, there was raised the question whether the Assimilative Crimes Act effected an adoption of State law in the Federal enclave, which might have had the effect of making illegal the transactions involved. The court made clear that it was avoiding this question (p. 391):
Were we to decide that the assimilative crimes statute is not applicable to this shipment of liquors, we would, in effect, be construing a federal criminal statute against the United States in a proceeding in which the United States has never been represented. And, on the other hand, should we decide the statute outlaws the shipment, such a decision would be equivalent to a holding that more than 200 Army Officers, sworn to support the Constitution, had participated in a conspiracy to violate federal law. Not only that, it would for practical purposes be accepted as an authoritative determination that all army reservations in the State of Oklahoma must conduct their activities in accordance with numerous Oklahoma liquor regulations, some of which, at least, are of doubtful adaptability. And all of this would be decided in a case wherein neither the Army Officers nor the War Department nor the Attorney General of the United States have been represented, and upon a record consisting of stipulations between a private carrier and the legal representatives of Oklahoma.
While two justices of the Supreme Court rendered a minority opinion expressing the view that the Assimilative Crimes Act adopted State regulatory statutes for the Federal enclave and made illegal the transactions involved, the majority opinion cannot hereby be construed, in view of the plain language with which it expresses the court's avoidance of a ruling on the question, as holding that the Assimilative Crimes Act does not adopt regulatory statutes.
The absence of decisions on the point whether the Assimilative Crimes Act is applicable to regulatory statutes containing criminal provisions may will long continue, in the general absence of Federal machinery to administer and enforce such statutes. In any event, it seems clear that portions of such statutes providing for administrative machinery are inapplicable in Federal enclaves; and in numerous instances
142such portions will, in falling, bring down penal provisions from which they are inseparable.
UNITED STATES COMMISSIONERS ACT OF 1940: The act of October 9, 1940 (now 18 U.S.C. 3401), granted to United States commissioners the authority to make final disposition of petty offenses committed on lands under the exclusive or concurrent jurisdiction of the United States, this providing an expeditious method of disposing of many cases instituted under the assimilative crimes statute. By 28 U.S.C. 632, national park commissioners (see 28 U.S.C. 631), have had extended to them the jurisdiction and powers had by United States commissioners under 18 U.S.C. 43001.
The view has been expressed that under this act United States commissioners are not authorized to try persons charged with petty offenses committed within a national monument, a national memorial park, or a national wildlife refuge, because of the fact that United States held the particular lands in a proprietorial interest statue, in accordance with its usual practice respecting lands held for these purposes, and the act authorizes specially designated commissioners to act only with respect to lands over which the United States exercises either exclusive or concurrent jurisdiction.
It is interesting to note that the act of October 9, 1940 (54 Stat. 1058), of which the present code section is a re-enactment by the act of June 25, 1948, was introduced as H.R. 1999, 76th Congress. A similar bill (H.R. 4011) without the phraseology
143"or over which the United States has concurrent jurisdiction" was passed by the House of Representatives in the 75th Congress. When the bill was reintroduced in the 76th Congress, the above-quoted words were included at the special request of the National Park Service, since only a small number of national park areas were under the exclusive jurisdiction of the United States, and without some language to provide for the trial jurisdiction of commissioners over petty offenses committed in the other areas the benefits of the proposed legislation could not be realized in many national parks.
The words "concurrent jurisdiction" were suggested because they were understood as including partial (or proprietorial) jurisdiction and as consisting essentially of that jurisdiction of the Federal Government which is provided by the Constitution, article IV, section 8. In fact, for a number of years, a proprietorial interest status as exercised over permanent reservations by the United States was understood among attorneys in the Department of the Interior as "concurrent jurisdiction." This construction has never been placed on the term "concurrent jurisdiction" either by the courts or by Government agencies generally, and at least in recent years the Department of the Interior has not so interpreted the term.
In this connection, it should be noted that the Department of the Interior in the past considered obtaining, in collaboration with other interested Federal agencies, legislation which would authorize United States commissioners to try petty offenses against the United States, regardless of the status of the jurisdiction over the Federal area involved.
The Committee has given consideration to broadening the
of United States commissioners by authorizing them to act
additionally on lands over which the Government has a proprietorial
interest only. In the Committee's conclusions and
recommendations, it was recommended that the powers of commissioners also extend to any place "* * * which is under the charge and control of the United States."