Establishing What a Crime Is
When we became an independent nation on September 3rd, 1783 (the day the Treaty of Paris was signed by both sides), we inherited the British legal system. It was, however, in conflict with many of the rights granted under the Constitution.
If you look at the acts passed by the First U.S. Congress which was in session from March 4th, 1789, to March 3rd, 1791, many were aimed at codifying what was in the Constitution. One of the first laws was the Judiciary Act of 1789, which was signed into law by President Washington. Its purpose was to create a layered judicial system that would operate under the Supreme Court. Besides establishing Federal District Courts, it set the number of Supreme Court Justices at five. Our Founding Fathers believed that the Supreme Court Justices could act in an appellate capacity for each of the five judicial districts.
Now that Congress had established a judicial framework, it needed to define what a Federal crime was and establish standardized punishments. In the Constitution, there is only one crime – treason – listed. This was a direct result of living under the rule of King George III and his minions, who could accuse anyone of treason and have the accused hanged.
The primary author of the Judiciary Act of 1789, Connecticut Senator (and later the third Chief Justice of the Supreme Court) Oliver Ellsworth. He set about to write a law that defined Federal crimes and punishments for those who were convicted. To be fair, it was not the first law passed by Congress defining crimes, but it is the one that became the foundation of the U.S. Criminal Code.
To create what became The Crimes Act of 1791, Ellsworth’s committee studied the laws from Massachusetts, New Jersey, Pennsylvania, South Carolina, and Virginia. All the members of the committee were attorneys who either went to law school in the U.S. or at one of the English Inns of Court. The law generated very little debate and was passed on April 30th, 1791, and signed into law the same day.
If you read the act, the first crime defined is treason. Suppose one is convicted of committing treason or knowing that treason was about to be committed. In that case, the only punishment listed is death.
Piracy, whether one commits the act, or is an accomplice, if convicted the only punishment is death. If you are considered an accessory, i.e. aiding someone to commit piracy, the fine was $500 and three years in prison.
Counterfeiting is the third crime listed in the bill. Anyone convicted of this crime, whether it be currency, bonds, or any legal document of the U.S., the only punishment listed is death.
Article One outlines what the legislation calls “offenses against the laws of nations” which are defined as affecting diplomatic immunity or obstructing the work of an ambassador or counsel. If a jury convicted you, then you would face three years in prison and be fined. No amount was set.
There are other crimes listed, e.g., perjury, and covering them would take up way too much space. Understand that what the act does is lay out what are considered Federal crimes, which would be tried in Federal courts rather than state courts. Ellsworth’s text clearly defines the scope and the limits of Federal jurisdiction as “Federal enclaves, properties of the Federal government, territories of the United States and the seat of government….”
While the punishments for some of the crimes listed in The Crimes Act of 1791 have changed, its core terms and language have been upheld many times by the Supreme Court. Some of the terms have been modified to make them more “current.”
Three other interesting points. One, the specific use of the word “death” for treason and piracy strongly suggests that the Founding Fathers believed the death penalty was a legitimate punishment and allowed by the Constitution. Two, The Crimes Act of 1791 also firmly establishes that Congress and the President have power over the Federal judiciary, which can be interpreted as going beyond approving judges and providing funding.
And three, what is most interesting, is that it reaffirms Congress’ power to impeach Federal judges and remove them from the bench. Or, if a judge is convicted in state court for a crime, allow the judge to be terminated..
Image is Oliver Ellsworth, Federalist Senator from Connecticut and 3rd Chief Justice of the Supreme Court of the U.S.