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effects greatly in excess of their intrinsic value, it was necessary in fixing the measure of compensation, to include the incremental element

of value attributable to the demand of collectors. Porter v. United States, 473 F. 2d 1329 (5th Cir. 1973). In reaching that conclusion the court addressed the question of when the actual "taking" occurred for which compensation was required: "Though the government took physical possession of the property in November, 1963, mere possession does not ipso facto establish that there was an actual 'taking', in the constitutional sense, for which compensation would be required... The weight of authority is that in order to constitute a taking, the condemnor must have an intention to appropriate, and in this case the requisite governmental intent was not manifested until the list of items to be acquired was published in the Federal Register. Up until then the government might very well have returned that which it had seized and, for all that appears those items which had not been listed were in fact returned to their owners. We conclude therefore, that the date of taking was November 1, 1966." (at 1335-1336)

Nichols

The application of Public Law 89-318 was clearly limited by the Congress to items relating to the assassination of President Kennedy. The validity of transfers made pursuant to that law to the Administrator of General Services (and ultimately to the Archivist) has been upheld. v. United States, 325 F. Supp. 130 (D. Kan. 1971); affirmed, 460 F. 2d 671 (10th Cir. 1972). And in Nixon v. Administrator of General Services, 433 U.S. 425 (1977), the Supreme Court said: "Legislation designed to guarantee the availability of evidence for use at criminal trials is a fair exercise of Congress' responsibility to the 'due process of law in the

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fair administration of criminal justice,' United States v. Nixon, 418 U.S., at 713...and to the functioning of our adversary legal system which depends upon the availability of relevant evidence in carrying out its commitments both to fair play and to the discovery of truth within the bounds set by law [citations omitted]. Similarly, Congress' interest in and expansive authority to act in preservation of monuments and records of historical value to our national heritage are fully established. Gettysbury Electric R. Co., 160 U.S. 668....(1896); Roe v. Kansas, 278 U.S. 191...(1920).* A legislature thus acts responsibly in seeking to accomplish either of these objectives. Neither supports an implication of a legislative policy designed to inflict punishment on an individual." (at 477-478).

United States v.

Acquisition of Such Materials in the Future

Acquisition of title by the United States in property of the sort here under consideration will most likely result from (1) the operation of a forfeiture, or (2) an exercise of the Government's power of eminent domain. The power of eminent domain is generally considered to be an

inherent attribute of sovereignty, a right that "appertains to every

The Court here added the following relevant note: "These cases upheld exercises of the power of eminent domain in preserving historical monuments and like facilities for public use. The power of eminent domain, however,

is not restricted to tangible property or reality but extends both to intangibles and to personal effects as involved here. See Cincinnati v. Louisville & Nashville R. Co., 223 U.S. 390, 400...(1912); Porter v. United States, 473 F. 2d 1329 (CA5 1973)."

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independent government."

Boom Co. v. Patterson, 98 U.S. 403, 406 (1878).

The primary constraints on the exercise of that right are (1) that the taking of private property be for "public use", and (2) as required by the Fifth Amendment, "nor shall private property be taken for public use without just compensation." "When the use is public, the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance." Id. And the Supreme Court has said: "The considerations that made it appropriate for the Constitution to declare that the Constitution of the United States, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land make it appropriate to recognize that the power of eminent domain, when exercised by Congress within its constitutional powers, is equally supreme." United States v. Carmack, 329 U.S. 230, 240 (1946). Any such "taking" must, of course, comport with requirements of due process. This power of condemnation includes real property, personal property and "every sort of interest the citizen may possess." United States v. General Motors Corp., 323 U.S. 373 (1945).

The power of eminent domain is generally deemed to reside in the legislature, though this power may be delegated. Thus mere enactment of a statute may accomplish a transfer. Public Law 89-318 was such a measure and this option would remain available to the Congress in the event that future situations called for the acquisition and preservation of materials. Forfeiture provides an alternative method of acquiring title where

it is provided for by statute. The scope of material which would be covered

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thereby would, however, be likely to be limited to contraband or items used directly in the perpetration of the crime. Numerous Federal statutes currently provide for the forfeiture of property used in the commission of crimes against the United States. The courts have generally upheld such penalties as a reasonable means of effectuating Federal powers and assert that no exercise of the power of eminent domain is involved: "It is not an instance of eminant domain, in which property is taken because the use of such property is beneficial to the public. Rather, the property interest is infringed because Congress has deemed it necessary in order to preserve other incidents of the public welfare. As such, it represents a Federal exercise of a police power to which the constitutional requirement of compensation is inapplicable." United States v. One 1962 Ford Thunderbird, 232 F. Supp. 1019, 1022 (N.D.111. 1964).

tion.

Murder of the President of the United States was made a Federal crime in 1965. Pub. L. 89-141, 79 Stat. 580, 18 U.S.c. 1751. Thus in the case of future attempts on the President's life, the forfeiture provisions of 18 U.S.C. 924(d) (see footnote, supra) would have applicaExplosives used could also be seized and forfeited to the government under 18 U.S.C. 844(c). 18 U.S.C. 1963 also provides for forfeiture in cases of violations of racketeering provisions of the criminal code. 18 U.S.C. 1961 et seq. But while these and numerous other Federal forfeiture statutes may provide for a taking in certain limited instances, no general Federal statute allows Federal investigators to seize personal belongings for permanent government retention without compensation.

42-793 - 79 - 46

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"The forfeiture and disabilities imposed by the early common law

on persons attainted of felony are unknown to the laws of this country, and no consequences follow conviction and sentence except such as are declared by law." 36 Am. Jur., Forfeitures and Penalties §15 (1968). A forfeiture set out in statute which imposes the taking upon conviction is termed a criminal forfeiture and is essentially a proceeding in personam against the defendant. No additional proceedings are required before the property is forfeited--it is automatic on sentencing. "On the other hand, under those Federal statutes which provide for civil forfeiture, the forfeiture is not part of the sentence. Before property may be civilly forfeited, the United States Attorney must bring a separate in rem action against the property which is declared to be unlawful or contraband under the statute, which is used for an unlawful purpose, or which is used in connection with the prohibited act or transaction...Today, examples of civil forfeiture provisions are those contained in the customs, narcotics, and revenue laws." Report of the Committee on the Judiciary of the United States Senate, Criminal Code Reform Act of 1977, at 894-895, 95th Cong., 1st Sess. (1977). Regardless of the method of forfeiture chosen (i.e. criminal or

civil), there "is no constitutional objection to enforcing a penalty by forfeiture of an offending article, and the state has the right to declare a forfeiture of property used in the commission of a criminal offense." 37 C.J.S., Forfeitures $4. Such forfeitures, it can be seen, will take place where Congress has (a) created a Federal offense covering the conduct to which the property is related, and (b) where it has enacted a