U. S. v. Hall, 98 U.S. 343 (1878)



Commentary by Jon Roland



The decision in this case is contradicted by the very words of the opinion:



     Courts of this kind were not created by the Constitution, nor

     does the Constitution invest them with any criminal

     jurisdiction. Even the powers of an express character given

     to Congress upon the subject embrace only a limited class

     of well known offences. Congress may provide for the

     punishment of counterfeiting the securities and current coin

     of the United States, and may pass laws to define and

     punish piracies and felonies committed on the high seas, and

     offences against the law of nations. Treason is defined by

     the Constitution, but it has never been decided that the

     offender could be tried and punished for the offence until

     some court is vested with the power by an act of Congress.



     Implied power in Congress to pass laws to define and

     punish offences is also derived from the constitutional grant

     to Congress to declare war, to raise and support armies, to

     provide and maintain a navy, and to make rules for the land

     and naval forces, and to provide for organizing, arming, and

     disciplining the militia and for governing such parts of them

     as may be employed in the public service. Like implied

     authority is also vested in Congress from the power

     conferred to exercise exclusive jurisdiction over places

     purchased by the consent of the legislature of the State in

     which the same shall be, for the erection of forts, magazines,

     arsenals, dockyards, and other needful buildings, and from

     the clause empowering Congress to pass all laws which shall

     be necessary and proper for carrying into execution the

     foregoing powers, and all other powers vested by the

     Constitution in the government of the United States, or any

     department or officer thereof.



The court overlooked that for the Founders "criminal" powers were the

powers to deprive a person of life, limb, liberty, property, or privileges,

and that punitive sanctions depriving a person of only property or

privileges were not considered "criminal" or "penal". Such "civil" penalties

might be imposed to enforce the exercise of powers to regulate, tax,

promote, or, in this case, to pay pensions, but such powers do not imply

the power to impose deprivations of life, limb, or liberty, which would

require a separate, express grant of such powers. This can be seen in the

Kentucky Resolutions of 1798.