Evans v. United States, 504 U.S. 255, 25 (1992)

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Cite as: 504 U. S. 255 (1992)

Thomas, J., dissenting

consists in any officer's unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due to him, or more than is due, or before it is due." 4 W. Blackstone, Commentaries 141 (1769) (emphasis added).

These definitions pose, but do not answer, the critical question: What does it mean for an official to take money "by colour of his office"? The Court fails to address this question, simply assuming that common-law extortion encompassed any taking by a public official of something of value that he was not "due." Ante, at 260.

The "under color of office" element of extortion, however, had a definite and well-established meaning at common law. "At common law it was essential that the money or property be obtained under color of office, that is, under the pretense that the officer was entitled thereto by virtue of his office. The money or thing received must have been claimed or accepted in right of office, and the person paying must have yielded to official authority." 3 R. Anderson, Wharton's Criminal Law and Procedure 1393, pp. 790-791 (1957) (emphasis added).1 Thus, although the Court purports to

1 That was straightforward black-letter law at the time the Hobbs Act was passed in 1946, and continues to be straightforward black-letter law today. See, e. g., 1 W. Burdick, Law of Crime 275, p. 395 (1946) ("At common law, the money or other thing of value must be taken under color of office. That is, the service rendered, or to be rendered, or pretended to have been rendered, must be apparently, or pretended to be, within official power or authority, and the money must be taken in such an apparent or claimed capacity") (emphasis added; footnotes omitted); 31A Am. Jur. 2d 11, p. 600 (1989) ("In order to constitute extortion, the taking must take place under color of office—that is, under the pretense that the officer is entitled to the fee by virtue of his or her office. This requires that the service rendered must be apparently, or pretended to be, within official power or authority, and the money must be taken in such apparent or claimed authority") (emphasis added; footnotes omitted). Cf. 7 Cyclopedia of Law and Procedure 401-402 (1903) (defining "color of office" as "a pretense of official right to do an act made by one who has no such right; the mere semblance, shadow, or false appearance of official authority; the dissembling face of the right of office; the use of official authority as a

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