During the tenure of Morrison Waite as Chief Justice of the Supreme Court of the United States (March 4, 1874 through March 23, 1888), the Supreme Court heard an unprecedented volume and frequency of criminal cases. In just fourteen years, the Court heard 106 criminal cases, almost as many cases as the Supreme Court had heard in the period from its creation to the appointment of Waite as Chief Justice. Notable cases include United States v. Cruikshank (1875), United States v. Reese (1875), Reynolds v. United States (1878), Wilkerson v. Utah (1879), the Trade-Mark Cases (1879), Strauder v. West Virginia (1880), Pace v. Alabama (1883), United States v. Harris (1883), Ex parte Crow Dog (1883), Hurtado v. California (1884), Clawson v. United States (1885), Yick Wo v. Hopkins (1886), United States v. Kagama (1886), Ker v. Illinois (1886), and Mugler v. Kansas (1887).

The Waite Court decided many issues of first impression, both new crimes and new doctrines of criminal procedure and criminal investigations. For example, the Waite Court was the first to hear cases regarding the federal anti-polygamy statutes, the Reconstruction-era civil rights crimes, extortion under color of office, fraud on the United States, and mail fraud. Further, the Waite Court was the first to interpret the Confrontation Clause and the Grand Jury Clause, the criminal procedure implications of the Equal Protection Clause, and the application of the Fourth Amendment to criminal proceedings.

The Waite Court decided several issues involving the interaction between the federal courts and the courts of the various states, such as civil rights and federal officer removal, criminal jurisdiction in Indian country, and federal habeas review of state criminal convictions.

Background

Despite the massive increase in the criminal case load before the Supreme Court, the statutory structure of the federal criminal system was not substantially changed during the Waite Court. In 1874 and 1878, the criminal statutes were codified in Title LXX of the Revised Statutes of the United States.Act of Jan. 27, 1866, ch. 7, 14 Stat. 8 (codified at Rev. Stat. tit. LXX (1877)). Title LXX occupied only 41 pages.Rev. Stat. §§ 5323–5550.

Sources of jurisdiction Writs of error State courts The Waite Court heard twenty-five criminal writs of error from the state courts (as authorized by § 25 of the Judiciary Act of 1789 and its progeny). Several of these cases involved the compatibility of state criminal laws with the Dormant Commerce Clause (and its counterweight, the police power). In Welton v. Missouri (1875), the Court reversed a conviction for selling goods without a license.Welton v. Missouri, 91 U.S. 275 (1875). In Turner v. Maryland (1883), the Court upheld a statute that required inspection of exported tobacco packed at a different place from where it is grown.Turner v. Maryland, 107 U.S. (17 Otto) 38 (1883). Barbier v. Connolly (1884) upheld a ban on laundries.Barbier v. Connolly, 113 U.S. 27 (1884). Presser v. Illinois (1886) upheld a ban on militias.Presser v. Illinois, 116 U.S. 252 (1886). Walling v. Michigan (1886) invalidated a tax on out-of-state liquor wholesalers (which did not apply to in-state liquor wholesalers).Walling v. Michigan, 116 U.S. 446 (1886). Smith v. Alabama (1888) upheld a locomotive licensing scheme.Smith v. Alabama, 124 U.S. 465 (1888).

Others involved the Equal Protection Clause of the Fourteenth Amendment. Strauder v. West Virginia (1880)Strauder v. West Virginia, 100 U.S. (10 Otto) 303 (1880). and Bush v. Kentucky (1883)Bush v. Kentucky, 107 U.S. (17 Otto) 110 (1883). reversed convictions because of racial exclusion in the jury system. In Pace v. Alabama (1883), the Court upheld an adultery prohibition that punished inter-racial fornication more than same-race fornication.Pace v. Alabama, 106 U.S. (16 Otto) 583 (1883) Pace was overruled by McLaughlin v. Florida (1964). Yick Wo v. Hopkins (1886) struck down a discretionary laundry permitting system that disadvantaged Asians.Yick Wo v. Hopkins, 118 U.S. 356 (1886) Hayes v. Missouri (1887) rejected an equal protection challenge to a statute authorizing the prosecution more peremptory challenges in large cities.Hayes v. Missouri, 120 U.S. 68 (1887).

Mugler v. Kansas (1887) upheld a state liquor prohibition under substantive due process.Mugler v. Kansas, 123 U.S. 623 (1887).

The Waite Court was several times called upon to decide issues related to the interaction of the state and federal criminal systems. In Coleman v. Tennessee (1878), the Court held that a state court had no jurisdiction to try a Civil War-era murder by a soldier, which at the time was subject to courts martial jurisdiction (and where in fact the defendant had previously been tried and convicted).Coleman v. Tennessee, 97 U.S. (7 Otto) 509 (1878). But, in Robb v. Connolly (1884), the Court permitted a state court to issue a writ of habeas corpus against the state officer who administers extradition to the state from other states.Robb v. Connolly, 111 U.S. 624 (1884). And, in Kurtz v. Moffitt (1885), the Court held that—as habeas is a civil proceeding and the federal diversity jurisdiction removal statute required an amount in controversy—state habeas proceedings could not be removed to federal court under this provision.Kurtz v. Moffitt, 115 U.S. 487 (1885). Natal v. Louisiana (1887) declined to issue a writ of supersedeas, finding that the state's initiation of a civil suit while a writ of error was pending before the Supreme Court was not contemptuous.Natal v. Louisiana, 123 U.S. 516 (1887).

Royall v. Virginia (1886) struck down a misdemeanor conviction for unauthorized practice under the Contract Clause.Royall v. Virginia, 116 U.S. 572 (1886). Royall's case repeatedly reached the Waite Court through various jurisdictional means, and ultimately Royall was denied relief.In re Royall, 125 U.S. 696 (1888).

Territorial courts

The Waite Court heard nine criminal appeals from the territorial courts, the majority of them arising from prosecutions of Mormon polygamists in the courts of the Utah Territory. Reynolds v. United States (1878) rejected six challenges to a polygamy conviction: that the territorial grand jury statute provided for fewer members that grand juries in the circuit courts; that it violated the Impartial Jury Clause to seat a juror opposed to polygamy; that for cause challenges were improperly granted to the prosecution; that testimony violated the Confrontation Clause; that polygamy was protected by the Free Exercise Clause; and that it was improper for the judge to comment on the social ills of polygamy.Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878).

Miles v. United States (1880) also rejected several challenges to a polygamy conviction. The Court held that bigamy could be proved by testimony (as opposed to, for example, a wedding certificate); that the question of whether the evidence established guilty beyond a reasonable doubt could not be raised de novo in the Supreme Court; that the judge could exclude jurors for-cause who believed polygamy was compelled by God; that it was too late post-conviction to complain for the first time that the wives were not named in the indictment; that there was no invalid variance from the indictment between the names "Caroline Owens" and "Caroline Owen Maile"; that wearing a wedding dress and attending a church known for polygamous weddings were competent evidence of marriage; that incompetent testimony (proof of the first marriage given by the second wife) could be given at the voir dire.Miles v. United States, 103 U.S. (13 Otto) 304 (1880).

In another such case, Clawson v. United States (1885), the Court held that there was no right to bail on appeal where a defendant had been sentenced to imprisonment (there was such a right where the only punishment was a fine).Clawson v. United States, 113 U.S. 143 (1885). Reaching the merits that same year, the Court held that the Congressional statute permitting for-cause challenges of jurors who believed that polygamy was divinely compelled applied to grand juries as well as petit juries, and that the marshall could call a second venire if the 200-person venire was exhausted before a full jury was seated.Clawson v. United States, 114 U.S. 477 (1885).

In Cannon v. United States (1885), the Court rejected two further challenges. First, the Court held that an indictment for the polygamy offense (which only applied to male defendants) need not allege the gender of the defendant. Second, the Court held that it was no defense that the defendant had ceased having sexual relations with his additional wives.Cannon v. United States, 116 U.S. 55 (1885).

An 1885 statute governing appeals from the territorial court reduced the possibility of such appeals.Act of Mar. 3, 1885, § 2, 22 Stat. 443. In Snow v. United States (1886), the Court rejected a polygamy appeal on the grounds that the statute granted jurisdiction in criminal appeals only if the validity, existence, or jurisdiction of the territorial courts was called into question.Snow v. United States, 118 U.S. 346 (1886). The statute did not preclude jurisdiction to hear appeals from denials of habeas corpus by the territorial courts. In Ex parte Snow (1887), the Court for the first time granted relief to a polygamy defendant, holding that the crime was a continuing offense, and thus the prosecutor could not increase the number of counts in the indictment by charging the same conduct over different time periods.Ex parte Snow, 120 U.S. 274 (1887).

The Court also heard a few non-polygamy territorial appeals. In Smith v. United States (1876), the Court for the first time dismissed an appeal pursuant to the fugitive disentitlement doctrine.Smith v. United States, 94 U.S. (4 Otto) 97 (1876). In Wilkerson v. Utah (1879), the Court held that execution by firing squad was not cruel and unusual punishment.Wilkerson v. Utah, 99 U.S. (9 Otto) 130 (1879). In Ex parte Reggel (1885), the Court held that the territorial extradition statute—referring to "treason, felony, or other crime"—included misdemeanors.Ex parte Reggel, 114 U.S. 642 (1885).

Original habeas Federal confinement The Waite Court heard twenty-four original habeas petitions in criminal matters. Many of these rulings held that the original habeas jurisdiction did not extend to the type of case presented. The general rule, articulated in several cases, was that there could be no post-conviction original habeas jurisdiction unless the court below was totally without jurisdiction (for example, if the criminal statute were unconstitutional).See, e.g., Ex parte Carll, 106 U.S. (16 Otto) 521 (1883); Ex parte Curtis, 106 U.S. (16 Otto) 371 (1882); Ex parte Rowland, 104 U.S. (14 Otto.) 604 (1881); Ex parte Siebold, 100 U.S. (10 Otto) 371 (1879); Ex parte Virginia, 100 U.S. (10 Otto) 339 (1880).