1. A criminal contempt, committed by disobedience of an
injunction issued by the District Court to abate a nuisance in
pursuance of
Page 267 U. S. 88
the Prohibition Law, is an "offence against the United States,"
within the meaning of Article II, 2, Cl. 1 of the Constitution, and
pardonable by the President thereunder. P.
267 U. S.
108.
2. Before our Revolution, the King of England had always
exercised the power to pardon criminal contempts, the pardon being
efficatious insofar as punishment was imposed in the public
interest, to vindicate the authority of the King and Court
(criminal contempt), but not insofar as imposed to secure the
rights of a suitor (civil contempt). P.
267 U. S.
110.
3. The like distinction between criminal and civil contempts is
clearly made in our law. P.
267 U. S.
111.
4. The history of the pardon clause in the Constitutional
Convention,
cited to show that the words "offences against
the United States" therein were intended, presumably, to
distinguish between offences against the General Government and
offences against the States, and not to narrow the scope of a
pardon as known in the common law. P.
267 U. S.
112.
5. There is no substantial difference in this matter between the
executive power of pardon in our Government and the King's
prerogative. P.
267 U. S.
113.
6. Nor does the ruling of this Court in
United
States v. Hudson, 7 Cranch 32, limiting the
exercise of ordinary federal criminal jurisdiction to crimes
defined by Congress, afford reason for confining "offences against
the United States," in the pardon clause to statutory crimes and
misdemeanors. P.
267 U. S.
114.
7. Construction of "offences against the United States" in the
pardon clause as including criminal contempts accords with the
ordinary meaning of the words, and is not inconsistent with other
parts of the Constitution where the term "offence" and the narrower
terms "crimes" and "criminal prosecutions" appear. Art. I, 8;
Amendments V and VI. P.
267 U. S.
115.
8. The power of the President to pardon criminal contempts is
sustained by long practice and acquiescence. P.
267 U. S.
118.
9. The contention that to admit the power of the President to
pardon criminal contempts (not to interfere with coercive measures
of the courts to enforce the rights of suitors) would tend to
destroy the independence of the Judiciary and would violate the
principle of separation of the three departments of the Government
is considered and rejected. P.
267 U. S.
119.
Rule in habeas corpus made absolute, and prisoner
discharged.
Habeas corpus, original in this Court, to try the
constitutionality of petitioner's confinement notwithstanding a
Page 267 U. S. 89
pardon granted by the President. The petitioner was found guilty
by the District Court of having disobeyed a temporary injunction,
issued under the Prohibition Act, forbidding illicit traffic in
liquors on certain premises. He was sentenced by the District Court
to pay a fine and to imprisonment for one year in the Chicago House
of Correcting -- a judgment which was affirmed by the Circuit Court
of Appeals. 280 Fed. 683. The President issued a pardon commuting
the sentence to the fine upon condition that the fine were paid;
which was done. Having been thereupon released from custody, the
petitioner was again committed by the District Court, upon the
ground that the pardon was ineffectual, 1 Fed.2d 941. He then
sought this writ of habeas corpus, directed to Graham, the
Superintendent of the House of Correction.
Page 267 U. S. 107
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This is an original petition in this Court for a writ of habeas
corpus by Philip Grossman against Ritchie V. Graham, Superintendent
of the Chicago House of Correction, Cook County, Illinois. The
respondent has answered the rule to show cause. The facts are not
in dispute.
On November 24, 1920, the United States filed a bill in equity
against Philip Grossman in the District Court of the United States
for the Northern District of Illinois, under Section 22 of the
National Prohibition Act (Ch. 85, 41 Stat. 305, 314), averring that
Grossman was maintaining a nuisance at his place of business in
Chicago by sales of liquor in violation of the Act and asking an
injunction to abate the same. Two days later, the District Judge
granted a temporary order. January 11, 1921, an information was
filed against Grossman, charging that, after the restraining order
had been served on him, he had sold to several persons liquor to be
drunk on his premises. He was arrested, tried, found guilty of
contempt and sentenced to imprisonment in the Chicago House of
Correction for one year and to pay a fine of $1,000 to the United
States and costs. The decree was affirmed by the Circuit Court of
Appeals, 280 Fed. 683. In December, 1923, the President issued a
pardon in which he commuted the sentence of Grossman to the fine of
$1,000 on condition that the fine be paid. The pardon was accepted,
the fine was paid, and the defendant was released. In May, 1924,
however, the District Court committed Grossman to the Chicago House
of Correction to serve the sentence notwithstanding the pardon. 1
Fed.2d 941. The only
Page 267 U. S. 108
question raised by the pleadings herein is that of the power of
the President to grant the pardon.
Special counsel, employed by the Department of Justice, appear
for the respondent to uphold the legality of the detention. The
Attorney General of the United States, as
amicus curiae,
maintains the validity and effectiveness of the President's action.
The petitioner, by his counsel, urges his discharge from
imprisonment.
Article II, Section 2, clause one, of the Constitution, dealing
with the powers and duties of the President, closes with these
words:
". . . and he shall have power to grant Reprieves and Pardons
for Offences against the United States, except in Cases of
Impeachment."
The argument for the respondent is that the President's power
extends only to offenses against the United States, and a contempt
of Court is not such an offense, that offenses against the United
States are not common law offenses, but can only be created by
legislative act, that the President's pardoning power is more
limited than that of the King of England at common law, which was a
broad prerogative and included contempts against his courts chiefly
because the judges thereof were his agents and acted in his name;
that the context of the Constitution shows that the word "offences"
is used in that instrument only to include crimes and misdemeanors
triable by jury, and not contempts of the dignity and authority of
the federal courts, and that to construe the pardon clause to
include contempts of court would be to violate the fundamental
principle of the Constitution in the division of powers between the
Legislative, Executive and Judicial branches, and to take from the
federal courts their independence and the essential means of
protecting their dignity and authority.
The language of the Constitution cannot be interpreted safely
except by reference to the common law and to
Page 267 U. S. 109
British institutions as they were when the instrument was framed
and adopted. The statesmen and lawyers of the Convention who
submitted it to the ratification of the Conventions of the thirteen
States were born and brought up in the atmosphere of the common
law, and thought and spoke in its vocabulary. They were familiar
with other forms of government, recent and ancient, and indicated
in their discussions earnest study and consideration of many of
them, but when they came to put their conclusions into the form of
fundamental law in a compact draft, they expressed them in terms of
the common law, confident that they could be shortly and easily
understood.
In a case presenting the question whether a pardon should be
pleaded in bar to be effective, Chief Justice Marshall said of the
power of pardon (
United States v.
Wilson, 7 Peters, 150,
32 U. S.
160):
"As this power had been exercised, from time immemorial, by the
executive of that nation whose language is our language, and to
whose judicial institutions ours bear a close resemblance, we adopt
their principles respecting the operation and effect of a pardon,
and look into their books for the rules prescribing the manner in
which it is to be used by the person who would avail himself of
it."
In
Ex parte William
Wells, 18 Howard, 307,
59 U. S. 311,
the question was whether the President, under his power to pardon
could commute a death sentence to life imprisonment by granting a
pardon of the capital punishment on condition that the convict be
imprisoned during his natural life. This Court, speaking through
Mr. Justice Wayne, after quoting the above language of the Chief
Justice, said:
"We still think so, and that the language used in the
Constitution, conferring the power to grant reprieves and pardons,
must be construed with reference to its meaning
Page 267 U. S. 110
at the time of its adoption. At the time of our separation from
Great Britain, that power had been exercised by the King, as the
chief executive. Prior to the Revolution, the Colonies, being in
effect under the laws of England, were accustomed to the exercise
of it in the various forms, as they may be found in the English law
books. They were, of course, to be applied as occasions occurred,
and they constituted a part of the jurisprudence of Anglo-America.
At the time of the adoption of the Constitution, American statesmen
were conversant with the laws of England and familiar with the
prerogatives exercised by the crown. Hence, when the words to grant
pardons were used in the Constitution, they conveyed to the mind
the authority as exercised by the English crown, or by its
representatives in the colonies. At that time, both Englishmen and
Americans attached the same meaning to the word pardon. In the
convention which framed the Constitution, no effort was made to
define or change its meaning, although it was limited in cases of
impeachment."
The King of England, before our Revolution, in the exercise of
his prerogative, had always exercised the power to pardon contempts
of court, just as he did ordinary crime and misdemeanors and as he
has done to the present day. In the mind of a common law lawyer of
the eighteenth century, the word pardon included within its scope
the ending by the King's grace of the punishment of such
derelictions, whether it was imposed by the court without a jury or
upon indictment, for both forms of trial for contempts were had.
Thomas of Chartham v. Benet of Stamford (1313), 24 Selden
Society 185;
Fulwood v. Fulwood (1585), Toothill, 46;
Rex v. Buckenham (1665), 1 Keble 751, 787, 852;
Anonymous (1674), Cases in Chancery, 238;
King and
Codrington v. Rodman (1630), Cro.Car.198;
Bartram v.
Dannett (1676), Finch, 253;
Phipps v. Earl of
Angelsea (1721), 1 Peere Williams, 696.
Page 267 U. S. 111
These cases also show that, long before our Constitution, a
distinction had been recognized at common law between the effect of
the King's pardon to wipe out the effect of a sentence for contempt
insofar as it had been imposed to punish the contemnor for
violating the dignity of the court and the King, in the public
interest, and its inefficacy to halt or interfere with the remedial
part of the court's order necessary to secure the rights of the
injured suitor. Blackstone IV, 285, 397, 398; Hawkins Pleas of the
Crown, 6th Ed. (1787), Vol. 2, 553. The same distinction, nowadays
referred to as the difference between civil and criminal contempts,
is still maintained in English law.
In the Matter of a Special
Reference from Bahama Islands, Appeal Cases [1893], 138;
Wellesley v. Duke of Beaufort, 2 Russell & Mylne, 639,
667, (where it is shown in the effect of a privilege from arrest of
members of Parliament analogous in its operation to a pardon);
In re Freston, 11 Q.B.D. 545, 552;
Queen v.
Barnardo, 23 Q.B.D. 305;
O'Shea v. O'Shea and
Parnell, 15 P. & D. 59, 62, 63, 65; Lord Chancellor
Selborne, in the House of Lords, 276 Hansard, 1714, commenting on
Greene's Case, 6 Appeal Cases, 657.
In our own law, the same distinction clearly appears.
Gompers v. Bucks Stove & Range Company, 221 U.
S. 418;
Doyle v. London Guarantee Company,
204 U. S. 599,
204 U. S. 607;
Bessette v. Conkey Co., 194 U. S. 324;
Alexander v. United States, 201 U.
S. 117;
Union Tool Co. v. Wilson, 259 U.
S. 107,
259 U. S. 109.
In the
Gompers case, this Court points out that it is not
the fact of punishment, but rather its character and purpose, that
makes the difference between the two kinds of contempts. For civil
contempts, the punishment is remedial and for the benefit of the
complainant, and a pardon cannot stop it. For criminal contempts,
the sentence is punitive in the public interest to vindicate the
authority of the court and to deter other like derelictions.
Page 267 U. S. 112
With this authoritative background of the common law and English
history before the American Revolution to show that criminal
contempts were within the understood scope of the pardoning power
of the Executive, we come now to the history of the clause in the
Constitutional Convention of 1787. The proceedings of the
Convention from June 19, 1787, to July 23rd were, by resolution,
referred to a Committee on Detail for report of the Constitution
(II Farrand's Records of Constitutional Convention, 128, 129) and
contained the following (II Farrand, 146): "The power of pardoning
vested in the Executive (which) his pardon shall not, however, be
pleadable to an impeachment." On August 6th, Mr. Rutledge of the
Committee on Detail (II Farrand, 185) reported the provision as
follows: "He shall have power to grant reprieves and pardons; but
his pardon shall not be pleadable in bar of impeachment." This is
exactly what the King's pardon was at common law, with the same
limitation. IV Blackstone, 399. On August 25th (II Farrand, 411),
the words "except in cases of impeachment" were added after
"pardons" and the succeeding words were stricken out. On Saturday,
September 8th (II Farrand, 547), a committee of five to revise the
style of and arrange the articles was agreed to by the House. As
referred to the Committee on Style, the clause read (II Farrand,
575): "He shall have power to grant reprieves and pardons except in
cases of impeachment." The Committee on Style reported this clause
as it now is: "and he shall have power to grant reprieves and
pardons for offences against the United States except in cases of
impeachment." There seems to have been no discussion over the
substance of the clause save that a motion to except cases of
treason was referred to the Committee on Style, September 10th (II
Farrand, 564), was not approved by the Committee, and, after
discussion, was defeated in the Convention September 15th (II
Farrand, 626, 627).
Page 267 U. S. 113
We have given the history of the clause to show that the words
"for offences against the United States" were inserted by a
Committee on Style, presumably to make clear that the pardon of the
President was to operate upon offenses against the United States,
as distinguished from offenses against the States. It cannot be
supposed that the Committee on Revision, by adding these words, or
the Convention, by accepting them, intended
sub silentio
to narrow the scope of a pardon from one at common law, or to
confer any different power in this regard on our Executive from
that which the members of the Convention had seen exercised before
the Revolution.
Nor is there any substance in the contention that there is any
substantial difference in this matter between the executive power
of pardon in our Government and the King's prerogative. The courts
of Great Britain were called the King's Courts, as indeed they
were; but, for years before our Constitution, they were as
independent of the King's interference as they are today. The
extent of the King's pardon was clearly circumscribed by law and
the British Constitution, as the cases cited above show. The
framers of our Constitution had in mind no necessity for curtailing
this feature of the King's prerogative in transplanting it into the
American governmental structures, save by excepting cases of
impeachment, and even in that regard, as already pointed out, the
common law forbade the pleading a pardon in bar to an impeachment.
The suggestion that the President's power of pardon should be
regarded as necessarily less than that of the King was pressed upon
this Court and was agreed to by Mr. Justice McLean, one of the
dissenting Judges, in
Ex parte William
Wells, 18 Howard, 307,
59 U. S. 321,
but it did not prevail with the majority.
It is said that "Offences against the United States," in the
pardon clause can include only crimes and misdemeanors
Page 267 U. S. 114
defined and denounced by Congressional Act, because of the
decision of this Court in
United States v.
Hudson, 7 Cranch 32. This was a criminal case
certified from the District Court upon a demurrer to an indictment
for criminal libel at common law. The Court sustained the demurrer
on the ground that indictments in federal courts could only be
brought for statutory offenses. The reasoning of the Court was that
the inferior courts of the United States must be created by
Congress, that their jurisdiction, though limited by the
Constitution, was in its nature very indefinite, applicable to a
great variety of subjects, varying in every State in the Union, so
that the courts could not assume to exercise it without legislative
definition. The legislative authority of the Union must first make
an act a crime, affix a punishment to it and declare the court that
shall have jurisdiction of the offense. The Court admitted that
"certain implied powers must necessarily result to our courts of
justice from the nature of their institution. But jurisdiction of
crimes against the state is not among those powers. To fine for
contempt -- imprison for contumacy -- enforce the observance of
order, etc., are powers which cannot be dispensed with in a court,
because they are necessary to the exercise of all the others, and
so far our courts no doubt possess powers not immediately derived
from statute; but all exercise of criminal jurisdiction in common
law cases we are of opinion is not within their implied
powers."
The decision was by a majority of the Court, and among the
dissenting members was Mr. Justice Story, who expressed himself
with vigor to the contrary in
United States v. Coolidge, 1
Gall. 488; Fed. Case No. 14,857, which was reversed by a majority
of the Court in 1 Wheat. 415. The
Hudson decision was made
in 1812. It is not too much to say that, immediately after the
ratification of the Constitution, the power and jurisdiction of
federal courts to indict and prosecute common law
Page 267 U. S. 115
crimes within the scope of federal judicial power was thought to
exist by most of the then members of this Court. The charge of
Chief Justice Jay to the Grand Jury in the United States Circuit
Court at Richmond in May, 1793, and the ruling by the United States
Circuit Court in
Henfield's Case, Fed. Case No. 6,360;
Wharton's State Trials, 49, in which Mr. Justice Wilson and Mr.
Justice Iredell constituted the court, sustained this view. Mr.
Warren, in his valuable history of this Court, Vol. I, p. 433, says
that, in the early years of the Court, Chief Justice Ellsworth and
Justices Cushing, Paterson, and Washington had also delivered
opinions or charges of the same tenor. Justices Wilson and Paterson
were members of the Constitutional Convention, and the former was
one of the five on the Committee on Style which introduced the
words "offences against the United States" into the pardon clause.
We can hardly assume under these circumstances that the words of
the pardon clause were then used to include only statutory offenses
against the United States and to exclude therefrom common law
offenses in the nature of contempts against the dignity and
authority of United States courts, merely because this Court, more
than twenty years later, held that federal courts could only indict
for statutory crimes, though they might punish for common law
contempts.
Nothing in the ordinary meaning of the words "offences against
the United States" excludes criminal contempts. That which violates
the dignity and authority of federal courts such as an intentional
effort to defeat their decrees justifying punishment violates a law
of the United States (
In re Neale, 135 U. S.
1,
135 U. S. 59,
et seq.), and so must be an offense against the United
States. Moreover, this Court has held that the general statute of
limitation, which forbids prosecutions "for any offense unless
instituted within three years next after such offense shall have
been committed," applies to criminal contempts.
Page 267 U. S. 116
Gompers v. United States, 233 U.
S. 604. In that case, this Court said (p.
233 U. S.
610):
"It is urged in the first place that contempts cannot be crimes,
because, although punishable by imprisonment and therefore, if
crimes, infamous, they are not within the protection of the
Constitution and the amendments giving a right to trial by jury
&c. to persons charged with such crimes. But the provisions of
the Constitution are not mathematical formulas having their essence
in their form; they are organic living institutions transplanted
from English soil. Their significance is vital, not formal; it is
to be gathered not simply by taking the words and a dictionary, but
by considering their origin and the line of their growth.
Robertson v. Baldwin, 165 U. S. 275,
165 U. S.
281,
165 U. S. 282. It does not
follow that contempts of the class under consideration are not
crimes, or rather, in the language of the statute, offenses,
because trial by jury, as it has been gradually worked out and
fought out, has been thought not to extend to them as a matter of
constitutional right. These contempts are infractions of the law,
visited with punishment as such. If such acts are not criminal, we
are in error as to the most fundamental characteristic of crimes as
that word has been understood in English speech. So truly are they
crimes that it seems to be proved that, in the early law, they were
punished only by the usual criminal procedure, 3 Transactions of
the Royal Historical Society, N.S., p. 147 (1885), and that, at
least in England, it seems that they still may be, and preferably
are, tried in that way.
See 7 Halsbury, Laws of England,
280, sub.
v. Contempt of Court (604);
Re Clements v.
Erlanger, 46 L.J. N. S., pp. 375, 383.
Matter of
Macleod, 6 Jur. 461.
Schreiber v. Lateward, 2 Dick.
592.
Wellesley's Case, 2 Russ. & M. 639, 667.
In
re Pollard, L.R. 2 P.C. 106, 120.
Ex parte
Kearney, 7 Wheat. 38,
20 U. S.
43.
Bessette v. W. B. Conkey Co., 194 U. S.
324,
194 U. S. 328,
194 U. S.
331,
194 U. S. 332.
Gompers
v. Bucks Stove & Range Co., 221 U. S.
418,
221 U. S. 441. "
Page 267 U. S. 117
The recent case of
Michaelson v. United States fully
bears out the same view.
266 U. S. 42,
266 U. S. 66,
266 U. S.
67.
It is said, however, that whatever may be the scope of the word
"offenses" in the particular statute construed in the
Gompers case, its association in the Constitution is such
as to show a narrower meaning. The word "offences" is only used
twice in the original Constitution, once in the pardon clause, and
once in Article I, Section 8, among the powers of Congress "to
define and punish Piracies and Felonies committed on the high seas
and offences against the Law of Nations." In the amendments,
"offence" occurs but once, and that in the Fifth Amendment in the
clause forbidding double jeopardy. We do not see how these other
two uses of the word can be said to limit the meaning of "offences"
in the pardon clause.
The argument is that the word "offences" is used in the
Constitution interchangeably with crimes and criminal prosecutions.
But as has been pointed out in
Shick v. United States,
195 U. S. 65, the
term "offences" is used in the Constitution in a more comprehensive
sense than are the terms "crimes" and "criminal prosecutions." In
Myers v. United States, 264 U. S. 95,
264 U. S. 104,
264 U. S. 105, we
have but recently held that
"while contempt may be an offense against the law and subject to
appropriate punishment, certain it is that, since the foundation of
our Government, proceedings to punish such offenses have been
regarded as
sui generis, and not criminal prosecutions
within the Sixth Amendment or common understanding."
Bessette v. Conkey Co, 194 U.
S. 324,
194 U. S. 326.
Contempt proceedings are
sui generis because they are not
hedged about with all the safeguards provided in the bill of rights
for protecting one accused of ordinary crime from the danger of
unjust conviction. This is due, of course, to the fact that, for
years before the American Constitution, courts had been held to be
inherently empowered
Page 267 U. S. 118
to protect themselves and the function they perform by summary
proceeding without a jury to punish disobedience of their orders
and disturbance of their hearings. So it is clear to us that the
language of the Fifth and Sixth Amendments and of other cited parts
of the Constitution are not of significance in determining the
scope of pardons of "offences against the United States" in Article
II, Section 2, clause 1, of the enumerated powers of the President.
We think the arguments drawn from the common law, from the power of
the King under the British Constitution, which plainly was the
prototype of this clause, from the legislative history of the
clause in the Convention, and from the ordinary meaning of its
words, are much more relevant and convincing.
Moreover, criminal contempts of a federal court have been
pardoned for eighty-five years. In that time, the power has been
exercised twenty-seven times. In 1830, Attorney General Berrien, in
an opinion on a state of fact which did not involve the pardon of a
contempt, expressed merely in passing the view that the pardoning
power did not include impeachments or contempts, using Rawle's
general words from his work on the Constitution. Examination shows
that the author's exception of contempts had reference only to
contempts of a House of Congress. In 1841, Attorney General Gilpin
approved the pardon of a contempt on the ground that the principles
of the common law embraced such a case and this Court had held that
we should follow them as to pardons. (3 Op.A.G. 622.) Attorney
General Nelson in 1844 (4 Op.A.G. 317), Attorney General Mason in
1845 (4 Op.A.G. 458), and Attorney General Miller in 1890 (19
Op.A.G. 476), rendered similar opinions. Similar views were
expressed, though the opinions were not reported, by Attorney
General Knox in 1901 and by Attorney General Daugherty in 1923.
Such long practice under the pardoning power and acquiescence in it
strongly
Page 267 U. S. 119
sustains the construction it is based on.
Stuart v.
Laird, 1 Cranch 299,
5 U. S. 308;
Cooley v. Board of
Wardens, 12 How. 299,
53 U. S. 315;
Lithographic Company v. Sarony, 111 U. S.
53,
111 U. S. 57;
The Laura, 114 U. S. 411,
114 U. S.
416.
Finally, it is urged that criminal contempts should not be held
within the pardoning power because it will tend to destroy the
independence of the judiciary and violate the primary
constitutional principle of a separation of the legislative,
executive and judicial powers. This argument influenced the two
district judges below. (1 Fed.2d 941.) The Circuit Court of Appeals
of the Eighth Circuit sustained it in a discussion, though not
necessary to the case, in
In re Nevitt, 117 Fed. 448. The
Supreme Court of Wisconsin, by a majority, upheld it in
State
ex rel. Rodd v. Verage, 177 Wis., 295, in remarks which were
also
obiter. Taylor v. Goodrich, 25 Texas Civil
App. 109, is the only direct authority, and that deals with a
clause a little differently worded. The opposite conclusion was
reached in
In re Mullee, 7 Blatchford, 23;
Ex parte
Hickey, 12 Miss. 751;
Louisiana v. Sauvinet, 24
La.Ann. 119;
Sharp v. State, 102 Tenn. 9;
State v.
Magee Publishing Company, 29 New Mexico 455.
The Federal Constitution nowhere expressly declares that the
three branches of the Government shall be kept separate and
independent. All legislative powers are vested in a Congress. The
executive power is vested in a President. The judicial power is
vested in one Supreme Court and in such inferior courts as Congress
may from time to time establish. The Judges are given life tenure
and a compensation that may not be diminished during their
continuance in office, with the evident purpose of securing them
and their courts an independence of Congress and the Executive.
Complete independence and separation between the three branches,
however, are not attained, or intended, as other provisions of the
Constitution and the normal operation of government under it
Page 267 U. S. 120
easily demonstrate. By affirmative action through the veto
power, the Executive and one more than one-third of either House
may defeat all legislation. One-half of the House and two-thirds of
the Senate may impeach and remove the members of the Judiciary. The
Executive can reprieve or pardon all offenses after their
commission, either before trial, during trial or after trial, by
individuals, or by classes, conditionally or absolutely, and this
without modification or regulation by Congress.
Ex parte
Garland, 4 Wall. 333,
71 U. S. 380.
Negatively, one House of Congress can withhold all appropriations
and stop the operations of Government. The Senate can hold up all
appointments, confirmation of which either the Constitution or a
statute requires, and thus deprive the President of the necessary
agents with which he is to take care that the laws be faithfully
executed.
These are some instances of positive and negative restraints
possibly available under the Constitution to each branch of the
government in defeat of the action of the other. They show that the
independence of each of the others is qualified, and is so subject
to exception as not to constitute a broadly positive injunction or
a necessarily controlling rule of construction. The fact is that
the Judiciary, quite as much as Congress and the Executive, is
dependent on the cooperation of the other two, that government may
go on. Indeed, while the Constitution has made the Judiciary as
independent of the other branches as is practicable, it is, as
often remarked, the weakest of the three. It must look for a
continuity of necessary cooperation in the possible reluctance of
either of the other branches to the force of public opinion.
Executive clemency exists to afford relief from undue harshness
or evident mistake in the operation or enforcement of the criminal
law. The administration of justice by the courts is not necessarily
always wise or certainly considerate of circumstances which may
properly mitigate
Page 267 U. S. 121
guilt. To afford a remedy, it has always been thought essential
in popular governments, as well as in monarchies, to vest in some
other authority than the courts power to ameliorate or avoid
particular criminal judgments. It is a check entrusted to the
executive for special cases. To exercise it to the extent of
destroying the deterrent effect of judicial punishment would be to
pervert it; but whoever is to make it useful must have full
discretion to exercise it. Our Constitution confers this discretion
on the highest officer in the nation in confidence that he will not
abuse it. An abuse in pardoning contempts would certainly embarrass
courts, but it is questionable how much more it would lessen their
effectiveness than a wholesale pardon of other offenses. If we
could conjure up in our minds a President willing to paralyze
courts by pardoning all criminal contempts, why not a President
ordering a general jail delivery? A pardon can only be granted for
a contempt fully completed. Neither in this country nor in England
can it interfere with the use of coercive measures to enforce a
suitor's right. The detrimental effect of excessive pardons of
completed contempts would be in the loss of the deterrent influence
upon future contempts. It is of the same character as that of the
excessive pardons of other offenses. The difference does not
justify our reading criminal contempts out of the pardon clause by
departing from its ordinary meaning confirmed by its common law
origin and long years of practice and acquiescence.
If it be said that the President, by successive pardons of
constantly recurring contempts in particular litigation, might
deprive a court of power to enforce its orders in a recalcitrant
neighborhood, it is enough to observe that such a course is so
improbable as to furnish but little basis for argument. Exceptional
cases like this, if to be imagined at all, would suggest a resort
to impeachment, rather than to a narrow and strained construction
of the general powers of the President.
Page 267 U. S. 122
The power of a court to protect itself and its usefulness by
punishing contemnors is, of course, necessary, but it is one
exercised without the restraining influence of a jury and without
many of the guaranties which the bill of rights offers to protect
the individual against unjust conviction. Is it unreasonable to
provide for the possibility that the personal element may sometimes
enter into a summary judgment pronounced by a judge who thinks his
authority is flouted or denied? May it not be fairly said that, in
order to avoid possible mistake, undue prejudice or needless
severity, the chance of pardon should exist at least as much in
favor of a person convicted by a judge without a jury as in favor
of one convicted in a jury trial? The pardoning by the President of
criminal contempts has been practiced more than three-quarters of a
century, and no abuses during all that time developed sufficiently
to invoke a test in the federal courts of its validity.
It goes without saying that nowhere is there a more earnest will
to maintain the independence of federal courts and the preservation
of every legitimate safeguard of their effectiveness afforded by
the Constitution than in this Court. But the qualified independence
which they fortunately enjoy is not likely to be permanently
strengthened by ignoring precedent and practice and minimizing the
importance of the coordinating checks and balances of the
Constitution.
The rule is made absolute, and the petitioner is discharged.