Moreover, it is the one chiefly relied upon by the Court; the other two being cited merely for their presumed supporting effect to the principle the Court considered inherent in the first one. What was the purpose Congress had in mind when it passed the 1893-1894 statute? A clue is furnished by the mere fact that it appears on the statute books as an amendment to an appropriation bill, rather than as a separate statute, or as an amendment to one of the criminal code provisions. The real purpose is also suggested in the last clause of the amendment, specifying that "no mileage shall be allowed any officer violating the provisions hereof," but the Congressional Record leaves no doubt about it. In the words of the sponsor of the amendment the enactment was for the purpose "of remedying an evil which exists in every State and where marshals arrest persons in one portion of the State and possibly take them the whole length of the State, for the purpose of making mileage against the Government, to have a hearing before some particular United States Commissioner. In some States they take these persons thus arrested away from their homes some 200 miles for the sole purpose of making mileage against the Government, sometimes through a combination between the officer, United States Commissioner, and even the defendant himself." This widespread fraudulent mileage practice resulted not only in Congress curbing the mileage racket in the manner specified in the appropriation bill amendment, but also in a more sweeping Congressional proposal calling for the abolition of the office of "commissioner of the circuit court" and the establishment of a system whereby federal commissioners were to be appointed for a limited period by the President upon the nomination of the Attorney General, and a number of safeguards provided in the form of a limitation on fees, the keeping of accurate records, etc., and a provision inserted which gave the Attorney General power to remove a commissioner when in his opinion the proper administration of justice required such removal.28 (As ultimately passed, in 1896, the bill provided for the appointment of commissioners by the district courts; it set up various safeguards; and it also placed United States marshals on an annual salary).29 The Report of the House Judiciary on the bill originally proposed to effect this reform is an extremely interesting commentary on the marshal-commissioner mileage-fee racket. Following are pertinent excerpts from the Report: "The evidence shows that in some parts of the country men 27 24 Cong. Rec. 1107 (1893). 28 26 Cong. Rec. 7757 (1894). 29 29 Stat. 181, 184 (1896). Court really meant what it seemed to say in the McNabb case, a reversal of the Upshaw case is in order. On the other hand, if the qualifying language the Court used in the Mitchell case is accorded any significance apart from its application to the particular facts of that case, then the Court may find a basis for upholding the conviction. There is, obviously, a third way out, and that is to simply overrule the McNabb case itself. This latter course is one which should be given serious consideration by the Court. Of the three federal arraignment statutes which were cited by the Court in the McNabb case as embodying a purpose and policy "to avoid all the evil implications of secret interrogation of persons accused of crime," the only one supposedly applicable to the McNabb case situation was passed in 1893 and reenacted in 1894 as an amendment to an appropriation bill. It prescribed, that it shall be the duty "of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the nearest Circuit Court Commissioner . . . and no mileage shall be allowed any officer violating the provisions hereof."24 (Italics added.) Another one of the statutes, which was passed at an earlier date, 1879, as an amendment to the internal revenue laws, provided that where "any marshal or deputy marshal ... shall find any person in the act of operating an illicit distillery, it shall be lawful . . . to arrest . . . and take him forthwith before some judicial officer... who may reside in the county of arrest or if none, in that nearest to the place of arrest. "25 The third arraignment statute referred to in the McNabb case opinion, one which was passed in 1934, authorized officers of the Federal Bureau of Investigation to make arrests and it further prescribed that "the person arrested shall be immediately taken before a committing officer."26 ... The 1893-1894 statute is the only one using the phrase "other officers," and not restricting its application to marshals or officers of the F.B.I., as did the other two. It is the only one, therefore, which could be applied to a situation where the arresting officers were members of the Alcohol Tax Unit, as in the McNabb case. 24 28 Stat. 416 (1894). The language quoted above, and in the Supreme Court opinion, is that of the 1894 statute, which differs only slightly from the one in the preceding year, and which was intended to serve the same purpose. The 1893 statute provided that "It shall be the duty of the marshal, his deputy, or other officer, who may arrest a person charged with any crime or offense, to take the defendant before the commissioner or the nearest judicial officer and no mileage shall be allowed any officer violating the provisions hereof." 27 Stat, 609 (1893). 25 20 Stat. 341 (1879). 26 48 Stat. 1008 (1934). Note that the three statutes cited are no longer in effect under the new Judicial Code. Federal Rule of Criminal Procedure 5b now applies. See note 40 infra. Moreover, it is the one chiefy relied on to our bill, rather than as a separate the va THCTA the Congressional Resort homes some 200 mie fukee States they take these t against the Government between the dive 102 ren defendant metr in Congress eng the the appropriato il Congressional prop "commissioner of the ref system whereby feer se limited perist by the Fender into www. ney General aut & Lunt tax": limitation or fee the same ass 2 COTAL BELIEVE I 18 justice requiet sur renegos bill promet for the epon My COTE: Ini dar Lepor are induced by deputy marshals and United States Commissioners to make complaints against each other . . ., are arrested by the deputy marshals and brought before the commissioners, where, after a hearing they are bound over to court, often becoming bail for each other, and appearing before the court as defendants, witnesses, and bail... "You start with a defendant in a neighborhood with two or three witnesses against him and you soon find around it has gathered a batch of cases in which every defendant had been a witness against somebody else, and every witness had been a defendant. "As witnesses they receive 5 cents a mile going and coming as mileage, and an attendance fee of $1.50 a day. It is part of the scheme to transport them long distances, a few at a time, past nearer commissioners, for the purpose of increasing their mileage, and the mileage and fees of the deputy marshals who arrest them."30 The report points out that this fraudulent mileage-fee practice was of many years standing. It called attention to an 1887 report of an attorney general describing the already well established racket and asking for remedial measures. This, then, was the situation which was the motivating factor for the 1893-1894 arraignment provision. Nowhere in the Congressional Record pertaining to the bill was the writer able to find any mention of a concern over what the Court in the McNabb case described as "the evil implications of secret interrogation of persons accused of crime." In fact the accused himself was often part and parcel of the fee-mileage racket! Moreover, it will be observed that this particular bill makes no reference to the time for bringing the accused before a commissioner; it merely refers to the distance. The word "forthwith" is not used at all; the emphasis is only upon the taking before "the nearest" United States Commissioner. Likewise, the 1879 arraignment amendment to the internal revenue bill, in which Congress happened to use the word "forthwith" as regards arrests by "marshals" of persons "caught in the act of operating an illicit distillery," was not initiated or passed to protect arrested persons from interrogation abuses. In its original draft it was intended merely "to enable a marshal to arrest for the purpose of carrying before a judicial officer-a power that is vested by the common law in every sheriff or other officer of like character," and it said nothing about "nearest magistrate" or "forthwith." (The sponsor, incidentally, was charged by another member of Congress with being "the champion of the rights of United 30 26 Cong. Rec. 7758-7759 (1894). 817 Cong. Rec. 4044 (1878). States marshals," a characterization which he resented when he replied that "the imputation is entirely unjust.") Amendments to the bill as originally introduced added the words "the nearest magistrate" and "forthwith," but without any debate or discussion as to the reason for the insertion of the amendments. The only indication in the Congressional Record of the purpose of the additional words-apart from what we may now surmise in the light of the action taken a few years later to abolish the mileage-fee racket is that revealed in the discussion of another proposed amendment to the same bill which would have made it a misdemeanor for a marshal to violate this section of the revenue laws. The unsuccessful proponent of this penalty provision said: "These marshals will not take a man when he arrests him to the nearest magistrate unless you offer a penalty such as will compel him to do it. He will take him to some man who is a relative of the ring ... that is the reason these marshals should be held to a penalty." Although as previously stated, this particular arraignment bill did not apply to the McNabb case situation, since the defendants had not been caught by "marshals" in "the act of operating an illicit distillery," its legislative history still falls short of even the supporting effect the Supreme Court ascribed to it in that case. Even the 1934 statute, pertaining to officers of the Federal Bureau of Investigation and obviously not applicable to the McNabb case situation, was passed primarily for the purpose of giving F.B.I. agents the right to arrest and to carry firearms.34 Irrespective of the misinterpretation of the factual situation in the McNabb case and the misconception of the purpose of the arraignment statute therein involved, the Supreme Court in the exercise of its supervisory power could still have laid down the same rule upon some other occasion. There need not have been a statutory arraignment provision specifically designed to protect the accused person's interest after arrest. The Court had only to say in some suitable case that since there was a statute requiring prompt arraignment it should be obeyed and unless there was a compliance with its provisions a confession subsequently obtained would be considered invalid. In fact, since 1945 anyway, the Court, in the exercise of its Congressionally authorized rule-making power, need not have waited for an actual case to establish such a rule; it could have done so by the simple expedient of announcing it as a 82 Ibid. 33 Id. at 4045. 34 See Judiciary Committee Reports, 73rd Cong., 2nd Sess. on House bill 9476 (1934). Apparently there is no report of any hearings on this bill. |