Opinion — Ex Parte Grossman

88 OCTOBER TERM, 1924.

Statement of the Case. 267 U.S.

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. 108.

2. Before our Revolution, the King of England had always exercised

the power to pardon criminal contempts, the pardon being effica-

tious in so far as punishment was imposed in the public interest, to

vindicate the authority of the King and Court (criminal contempt),

but not in so far as imposed to secure the rights of a suitor, (civil

contempt). P. 110. :

3. The like distinction between criminal and civil contempts is clearly

made in our law. P. 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. 112.

5. There is no substantial difference in this matter between the execu-

tive power of pardon in our Government and the King’s preroga-

tive. P. 113.

6. Nor does the ruling of this Court in United States v. Hudson 7

Cranch, 32, limiting the exercise of ordinary federal criminal juris-

diction to crimes defined by Congress, afford reason for confining

“ offences against the United States,” in the pardon clause, to statu-

tory crimes and misdemeanors. P. 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. 115.

8. The power of the President to pardon criminal contempts is

sustained by long practice and acquiescence. P. 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 con-

sidered and rejected. P. 119.

Rule in habeas corpus made absolute and prisoner discharged.

Habeas coryus, original in this Court, to try the consti-

tutionality of petitioner’s confinement notwithstanding a

EX PARTE GROSSMAN. 89

87 Argument for Petitioner.

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 Cor-

rection—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 condi-

tion 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.

Mr. Louis J. Behan, with whom Mr. Robert A. Milroy

and Mr. Wiliam J. Corrigan were on the brief, for peti-

tioner.

I. The petitioner was convicted of criminal contempt.

Pino v. United States, 278 Fed. 479; McGovern v. United

States, 280 Fed. 73; Grossman v. United States, 1 Fed.

(2d) 941.

II. A criminal contempt is an offense against the United

States because:

(a) The courts have held it to be “ a specific criminal

offense.” In re Kearney, 7 Wheat. 38; New Orleans v.

N. Y. Mail 8. 8. Co., 20 Wall. 387; In re Swan, 150 U. 8S.

637; Fanshawe v. Tracy, 4 Biss. 490; Fischer v. Hayes,

6 Fed. 63; In re Ellerbee, 13 Fed. 530; United States v.

Berry, 24 Fed. 780; Kirk v. Milwaukee Dust Collector

Mfg. Co., 26 Fed. 501; Bullock Electric & Mfg. Co. v.

Westinghouse, 129 Fed. 105; United States v. Jacobi, 26

Fed. Cases, 564; In re Litchfield, 13 Fed. 863; In ré Acker,

66 Fed. 290; Passmore Williamson’s Case, 26 Pa. St. 9;

State ex rel. v. Sauvinet, 24 La. Ann. 119; Sharp v. State,

90 OCTOBER TERM, 1924.

Argument for Petitioner. 267 U.S.

102 Tenn. 9; In re Shull, 221 Mo. 623; Schwartz v. Supe-

rior Court, 111 Cal. 106; Lester v. People, 150 Ill. 408.

(b) In a criminal contempt, the defendant is presumed

to be innocent until guilt is proved beyond a reasonable

doubt. United States v. Jose, 63 Fed. 951; Michaelson v.

United States, 266 U. S. 42; Gompers v. Bucks Stove &

Range Co., 221 U. 8. 418; Jones v. United States, 209

Fed. 585; Oates v. United States, 233 Fed. 201; Kelly v.

United States, 250 Fed. 947; Galen v. United States, 250

Fed. 947; In re Cashman, 168 Fed. 1008; United States

v. Carroll, 147 Fed. 947.

(c) Prosecutions for criminal contempt are barred by

the statute of limitations. Gompers v. United States, 233

U.S. 604.

(d) In criminal contempt cases the provisions of the

Federal Penal Code with respect to removal, arrest and

bail are applicable. Castner v. Pocahontas, 117 Fed. 184;

United States v. Jacobi, 26 Fed. Cases 564, 566.

(e) Review of criminal contempt is the same as in

other criminal cases. Jn re Merchants Stock & Grain Co.,

223 U. S. 640; Gompers v. Bucks Stove & Range Co., 221

U. S. 418; In re Christensen Engineering Co., 194 U. S.

III. The authority of the President to grant pardon

for criminal contempt is sustained:

(a) By custom and usage prior to and at the time of

"(1898) ; ; Ez

ras ek aoe

= Beward ¥. Patterson, 1 Chan. 545; Madison’s De-

EX PARTE GROSSMAN. . 91

87 Argument for Petitioner.

bates of Federal Convention; Farrand’s Records of Fed-

eral C orivention, Vol. I and Vol. II; Madison’s Journal of

Federal Convention; The Federalist, Letter LXXIV

(Hamilton).

(b) By custom and use since the adoption of the Con-

stitution. 3 Op. A. G., 622; 4 Op. A. G., 458; 19 Op. A. G.,

476.

(c) By the broad terms in which the pardon power is

granted, and by the specific exception of impeachment

cases. See United States v. Wilson, 7 Peters 150; Ex

parte Wells, 18 How. 307; Ex parte Garland, 4 Wall. 333;

United States v. Klein, 13 Wall. 128; United States v.

Thomasson, 28 Fed. Cas. 82; 13 Corpus Juris 97; 29 Cyc.

1563; 6 Ruling Case Law, 540; 20 Ruling Case Law 537;

1 McClain Crim. L. (1897 Ed.) Sec. 9; 1 Bishop Crim.

Law (7th Ed.) Sec. 913; 1 Kent’s Comm, (14th Ed.) 343;

Story on Const., Vol. 3, Sec. 1488; Rawle. on Const. (2d

Ed.) 174; 7 Bacon’s Abridg., 405, (1845 Ed.); 2 Curtis

Hist. Const., 413; 2 Willoughby Const. 1270; Oswald on

Contempt (1911 Ed.) 3; 1 Jour. Crim. Law and Crimi-

nology 549; 43 Amer. Law Rev. 192; 49 Amer. Law Rev.

648; Ency. Britt., 11th Ed. “ Contempt ”; United States

v. Arrendondo, 6 Pet. 691; Bend v. Hoyt, 13 Pet. 263;

Arthur v. Cummings, 91 U.S. 362; Diehl v. Rogers, 169

Pa. St. 316.

(d) By adjudicated cases on power to pardon contempt.

Ex parte Fiske, 113 U.S. 713; Bessett v. Conkey, 194 U.S.

325; In re Mullee, Fed. Cas, No. 9911; In re Mason, 43

Fed. 510; Castner v. Pocahontas Collieries Co. 117 Fed

184; Butte & C. Co. v. Montana Ore Co., 158 Fed. 131; Ex

parte Hickey, 12 Miss. 751; State, ez rel. v. Sauvinet, 24

La. Ann. 119; In re Browne, 2 Colo. 553; Sharp v. State,

102 Tenn. 9.

The purpose of the contempt proceedings in the case at

bar was to assist in the administration of a public law,

criminal in its nature; the injunction was directed against

acts that were crimes and punishable as such, and the

92 -. OCTOBER TERM, 1924.

Argument for Respondent. 267 U.S.

violation of the injunction was punished, not primarily to

vindicate the authority of the court, nor to protect its

process of adjudication, but to stop the repetition of such

conduct as the legislative policy of the United States had

declared to be criminal. The reasons of policy that sup-

port executive pardons for crimes are as applicable to the

punishment of offenders by contempt proceedings as to

the punishment of offenders by ordinary criminal pro-

ceedings, whenever the purpose of the former is solely or

primarily to secure the enforcement of the criminal law.

It is no more a reflection upon the courts to recognize

the pardoning power in the President in a case of a

criminal contempt, than to recognize such power where

the criminal laws of the people enacted by the legislature

have been violated and the defendant is sentenced to im-

prisonment by the court. The right to punish for con-

tempt of court, cannot be superior to the rights of the

people, for all power in the last analysis is granted by and

comes from the people.

The reasons may be as potent for the granting of a par-

don when crime is punished by equity in contempt pro-

_ ceedings as when it is punished by a common law judge

after a conviction by a jury. That the executive should

have the power to pardon both classes of offenders seems

logical, consistent and socially desirable, nor does it seem

any greater blow to the prestige of the court, that the

executive should pardon a defendant’s commitment for

contempt than that he should remit his sentence for

crime—both being imposed for the same criminal act, and

perhaps imposed by the same judge sitting first in an

equity and tien in a criminal term of the court.

Mr. Amos C. Miller and Mr. F. Bruce Johnstone,

Special Assistants to the Attorney General, for respondent.

The natural and ordinarily understood meaning of the

words “ offences against the United States” does not

include contempts of court.

GRUYDRSIDY OE DENVER COLLEGE OE LAW LLBEAN |

EX PARTE GROSSMAN.

87 Argument for Respondent.

The terms “ offence” and “crime” are synonymous

and the term “ offence against the United States” means

the same as “offence against the laws of the United

States.” Since there are no common law crimes, those

terms mean offences denounced as such by the statutes of

the United States.

For definitions and instances of the use of the words

“crime” and “ offence” by courts and text writers see

United States v. Wilson, 7 Peters, 150; Moore v. People,

14 How. 13; United States v. Hudson, 7 Cranch 32;

United States v. Eaton, 144 U.S. 677; In re Chapman, 166

U. S. 661; The Laura, 114 U. 8. 411; Thomas v. United

States, 156 Fed. 897; In re Terry, 37 Fed. 649; United

States v. Boston, 273 Fed. 535, Commonwealth v. Brown,

107 Atl. (Pa.) 676; Dunson v. Baker, 80 So. (La.) 238;

State v. West, 42 Minn. 147; Cruthers v. State, 161 Ind.

139; Dominick v. Bowdoin, 44 Ga. 357; Kopp v. French,

102 N. Y. 583; Yates v. Lansing, 9 Johns. (N. Y.) 395;

10 Op. A. G. 452; People v. Seymour, 191 Ill. App. 381;

Black’s L. Dict. 2d Ed. 487; Stroud’s Judicial Dict. 2d Ed.

1318,

These cases disclose a common understanding, extend-

ing from (or near) the time of the adoption of the Federal

Constitution, that, except in those jurisdictions where

there are common law crimes, the word “ offence” in-

cludes those acts only which have been denounced as such

and made punishable by statute.

That contempts of court are “sui generis” and the

proceedings to punish them are “ neither civil actions nor

prosecutions for offences within the ordinary meaning of

those terms” is the doctrine of this Court. Bessette v.

Conkey Co. 194 U. S. 324; Eilenbecker v. District Court

134 U. 8. 31; Dunham v. United States, 289 Fed. 376;

Grain Company v. Board of Trade, 201 Fed. 20; Michael-

son v. United States, 266 U. S. 42.

While contempts of court have in some instances been

spoken of by this ‘Court as crimes, it is clear that such

94 OCTOBER TERM, 1924.

Argument for Respondent. 267 U.8.

classification was for some purpose of procedure only.

New Orleans v. Steamship Company, 20 Wall. 387.

If, as stated by Mr. Justice Holmes in the second

Gompers Case, contempts of court in England were crimes

or offences indictable and punishxble as such by the usual

criminal procedure, it is because the law of England, un-

like our federal law, recognized comm.n law crimes, pun>o

ishable as such. A contempt of court was not only an

offence against the court, it was equally an offence against

the King, like every other offence. See dissenting opinicn

in Ex parte We'le, 18 How. 307; State v. Magee Publish-

ing C'a., 29 New Mexico 455.

As said in Bessette v. Conkey, 194 U.S. 324, a contempt

proceeding is criminal in its nature, in that the party is

charged with doing something forbidden, and if found

guilty, is punished. ;

The ordinary classification of contempt as either civil

or criminal, can throw no light upon the question here

involved. This classification was first adopted, we be-

lieve, in the year 1831, in England. Wellesley v. Duke of

Beaufort, 2 Russ. & M. 639, 39 Eng. Rep. 538. It is an

artificial one made by the court for the purposes of pro-

cedure. It is held by this Court that the violation of a

mandatory order of court, punishable by imprisonment or

other penalty intended to be éoercive, is a civil contempt;

whereas, the violation of a prohibitive order of court, pun-

ishable by a fine or imprisonment intended as a vindica-

tion of the court’s dignity, is a criminal contempt.

Gompers v. Bucks Stove & Range Co., 221 U.S. 418. But

it is obvious that the flouting of the court’s decree is as

much a public offence in the one case as in the other, and

as destructive of the court’s dignity, power and efficiency

(if allowed to go unpunished) and of the rights of parties

litigant. Indeed, it has been said in substance by this

Court, and it iz obviously true, that all violations of court

orders are both civil and criminal contempts, because all

EX PARTE GROSSMAN. 95

87 Argument for Respondent.

proceedings for punishment (whichever aspect domi-

nates) are both civil and criminal, in the sense in which

the terms are used in the classification; that is to say, all

such proceedings, however classified, tend to enforce the

property rights of the parties litigant, and also tend to

vindicate the dignity of the court, and protect the public

respect which is essential to its existence. Gompers v.

Bucks Stove & Range Co., supra; Bessette v. Conkey Co.

194 U.S. 324. See Gompers v. Bucks Stove & Range Co.,

221 U. S. 418; People v. Peters, 305 Ill. 223. °

The Constitution and its Amendments in different pro-

visions treat of “ offences against the United States,” of

“ offences,” of “crimes” and of “ criminal prosecutions.”

Those terms were doubtless used interchangeably. They

have always been regarded as substantially synonymous.

No reason can be assigned for the use of the one rather

than another in any Article of the Constitution. It is

impossible to argue that these different terms were used

with differeat ideas in view. These terms are used in six

different Articles of the Constitution. It is impressive,

we submit, that no one of the six has ever been held to

embrace contempts of court.

First. In Article II, § 2, cl. 1, appear the words here in

controversy.

Second. Article III, § 2, cl. 3, provides that “ The trial

of all Crimes except in Cases of Impeachment shall be by

Jury; and such Trial shall be held in the State where the

said Crimes shall have been committed * * *.”

Since the foundation of our government, at least, it has

been universally held that trials of contempts of court

need not be, (and until the enactment of the Clayton Act

that they could not be) by jury. It is true that in the

second Gompers Case 233 U. S. 604 the opinion said that

contempts of court, even though crimes, need not, under

the Constitution, be tried by jury, because they were not

so triable when the Constitution was framed. This, how-

96 OCTOBER TERM, 1924.

Argument for Respondent. 267 U.S.

ever, we respectfully submit, would be giving the Consti-

tution a somewhat strained construction, making it read:

“ The trial of all crimes, except in cases of impeachment,

and except in cases now otherwise triable, shall be by

jury.” And since this Court has held that those almost

identical words of the Sixth Amendment do not require a

trial for contempt to be held in the district of its commis-

sion for the reason that a proceeding for contempt is not

a criminal prosecution, we can see no ground for not ap-

plying the same reasoning to clause 3 of § 2 of Art. III

and thus reaching the same conclusion (that jury trials

are not required) without doing violence to the language.

That this is the correct reason for the conclusion would

seem to follow necessarily from a consideration of the

second sentence of clause 3. That a contempt trial need

not be held in the State where the contempt was com-

mitted would seem to be settled. Myers v. United States

264 U.S. 95. The sole reason is that a contempt trial is

not a trial for a crime. In re Terry, 37 Fed. 649.

Third. Article IV, § 2, cl. 2, of the Constitution reads:

“A person charged in any State with Treason, Felony or

other Crime, who shall flee from Justice, and be found in

another State, shall on demand of the executive Authority

of the State from which he fled be delivered up to be re-

moved to the State having Jurisdiction of the crime.” A

careful search has disclosed no case holding that contempt

of court is or is not extraditable. We venture the sugges-

tion that by common understanding it is not.

Fourth. The second provision of the Fifth Amendment

reads: “nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness

against himself * * *.”

- That punishment as for contempt of court of an act

which is also a crime is no bar to a criminal prosecution,

is well settled law. See Jn re Debs, 158 U. S. 564; In re

EX PARTE GROSSMAN. 97

87 Argument for Respondent.

Chapman, 166 U. S. 661. Grain Company v. Board of

Trade, 201 Fed. 20.

Fifth. The Sixth Amendment directs that: “In all

criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been com-

mitted,” ete.

It will be noted that the first sentence of this amend-

ment uses the terms “ criminal prosecutions ” and “crime.”

It is impossible to argue that one of those terms was in-

tended to be either broader or narrower than the other. It

was held by this Court in Myers v. United States, supra,

that “since the foundation of our government, proceed-

ings to punish such offences (contempts of court) have

been regarded as sui generis and not “ criminal prosecu-

tions within the Sixth Amendment, or common under-

standing.” See Binkley v. United States, 282 Fed. 244;

McCourtney v. United States, 291 Fed. 497 ; Ex Parte

Terry, 128 U. 8. 289; Middlebrook v. The State, 43 Conn.

257.

Sizth. The Thirteenth Amendment reads: “Neither

slavery nor involuntary servitude, except as a punishment

for crime whereof the party shall have been duly con-

victed, shall exist within the United States, or any place

subject to their jurisdiction.” Flannagan v. Jepson,

(Iowa) 158 N. W. 641 held that imprisonment alone is

not servitude; that hard labor is infamous punishment,

and as such cannot be imposed for contempt under the

Thirteenth Amendment. See Jn re Filki, 80 Cal. 201.

From a study of the records of the Constitutional Con-

vention, and of the various ratifying conventions, it seems

clear that neither the framers of the Constitution nor

those who subsequently put it into operation ever thought

of contempt of court in connection with the power of

pardon granted to the President.

42684°—25-——-7

EX PARTE IN THE MATTER OF PHILIP GROSS-

MAN, PETITIONER.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR

THE NORTHERN DISTRICT OF ILLINOIS.

No. 24, Original. Argued December 1, 1924.—Decided March 2, 1925.

1. A criminal contempt, committed by disobedience of an injunction

issued by the District Court to abate a nuisance in pursuance of

98 OCTOBER TERM, 1924.

Argument for Respondent. 267 U.S.

Though the clause was liberally debated in the Con-

stitutional Convention, contempts of court were never

referred to.

A search of the records of the ratifying conventions,

and of the various addresses to the Virginia Convention,

fails to disclose that contempts of court were ever touched

upon.

The contemporary publications concerning the Consti-

tution between the time of its adoption by the convention

and its subsequent ratification, so far as we have been able

to ascertain, do not disclose that the subject was ever

mentioned.

Furthermore, the record of the Constitutional Conven-

tion relating to this pardon provision is confirmatory of

the views here expressed.

The pardoning power of the executive cannot be con-

strued to cover contempts of court without encroaching

upon the judicial power of the United States, which by

the Constitution is vested in the federal courts,

The power to punish for contempt and thereby compel

respect for its decrees is an inherent power of the federal

courts. It isan essential part of judicial power. Michael-

son v. United States, 266 U. 8. 42; Anderson v. Dunn, 6

Wheat. 204; Ex parte Terry, 128 U.S. 289; Eilenbecker v.

Dist. Court, 134 U. S. 31; Cartwright’s Case, 114 Mass.

230; Interstate Commerce Commission v. Brimson, 154

U. 8. 447; Cooper’s Case, 32 Vt. 253; In re Debs, 158 U. 8.

564; Watson v. Williams, 36 Miss. 331; Gompers v. Bucks

Stove & Range Co., 221 U. 8. 418; Myers v. United States,

264 U. 8. 95.

The Judiciary—concededly the weakest of the three co-

ordinate departments of government—must not be

obliged to depend on the Executive for the enforcement

of its decrees. Such dependence would violate the princi-

ple of separation of powers upon which our governmental

structure is based.

EX PARTE GROSSMAN. 99

87 Argument for Respondent.

The pardon of a crime furnishes no analogy. Having

sentenced a criminal for violation of a penal statute, the

court’s work is completed. It is not directly concerned

with the execution of the sentence. In the enforcement

of its decrees, however, the court has a continuing interest.

A violation of such decrees is a blow at judicial authority.

The pardon of a criminal is an act of mercy. The pardon

of contempt is a negation of judicial power.

The situation in England is not analogous. There, gov-

ernment is unitarian in form with the King as its nominal

head. In theory at least, and by tradition, it is the

King’s justice which is dispensed. Here, government is

trinitarian, and each of the three departments, legisla-

tive, executive and judicial, is supreme in its sphere. Con-

tempt of an English court is contempt of the English

King. Contempt of a federal court is not contempt of

the President.

Our Judicial Department which checks both President

and Congress, holding them within constitutional bounds,

is without counterpart in England. The duty imposed is

heavy and the responsibility great. The security of the

people in the rights guaranteed them by the Constitution

and against unconstitutional legislation or unwarranted

executive interference is the sole objective. How can it be

possible for this Court to discharge the duty thus imposed,

if it be conceded that a sentence imposed for disobedience

of the orders of this Court, entered, it may be, for the

purpose of controlling a tyrannical Executive, may be by

such Executive immediately nullified? The doctrine of

the separation of powers was early recognized by this

Court. Marbury v. Madison 1 Cranch, 137. See Kil-

bourn v. Thompson, 103 U. S. 168; Evans v. Gore, 253

U. 8S. 245.

Neither opinions of Attorneys General nor acts of the

Executive are determinative (discussing Ex parte Fisk,

113 U.S. 713; The Laura, 114 U. 8. 411; United States v.

Wilson, 7 Pet. 150.)

100 OCTOBER TERM, 1924.

| Argument for Respondent. 267 U.S.

As with opinions of the law department, there is here

no element of contemporaneous construction through par-

dons granted. The earliest instance disclosed occurred

forty years after the Constitution had been adopted.

In the entire list submitted by the Attorney General it

is important to note that in only five cases does it affirma-

tively appear that the pardon issued contrary to the

wishes of the court which had imposed the sentence.

Constitutional power in the Executive may not be

created merely by acquiescence on the part of the courts.

The Judicial Department has not the freedom of action

accorded Congress or the President—the rational basis for

an estoppel in favor of either and against the Judiciary is

therefore lacking. Certainly no estoppel can be claimed

to exist before this Court has been called upon to act (dis-

cussing United States v. Midwest Oil Co. 236 U. S. 459).

Contempt of court may not be pardoned without im-

pairing the powers and functions of the court and lessen-

ing its respect and authority. Toledo Newspaper Co. v.

United States 247 U.S. 402; Craig v. Hecht, 263 U.S. 255.

The power of the federal court to compel respect for a

decree under the Volstead Act is the same power as has

been and should be invoked whenever any decree of that

court is defied.

We know of no reason justifying a denial of the pardon-

ing power for contempt of Congress that does not apply

with equal or greater force to contempts of court. The

power to deal with contempt rests on the right of self-

preservation. Marshall v. Gordon, 243 U.S. 521; Toledo

Newspaper Co. v. United States 247 U. S. 402; Story

Const. Vol. 2, (5th Ed.) § 1503.

Congress has power to regulate and restrict, but not to

destroy, the power of the courts in contempt cases. It

may provide for the amelioration of punishments imposed

for contempt. Such congressional control is fiexible and

useful. This flexibility and usefulness will be destroyed

EX PARTE GROSSMAN. 101

87 Argument of the Attorney General.

if the pardoning power of the President is enlarged by

construction to include contempts. Ez parte Robinson,

19 Wall. 505; The Laura, 114 U, S. 411; United States v.

Daniels, 279 Fed. 844.

Mr. Attorney General Stone, as amicus curiae. Mr.

Solicitor General Beck and Mr. Robert P. Reeder, Special

Assistant to the Attorney General, were also on the brief.

I. The offense for which the petitioner was committed

was @ criminal contempt; Gompers v. Bucks Stove &

Range Co., 221 U. 8. 418; Michaelson v. United States,

266 U.S. 42; and the more clearly so because under the

National Prohibition Act the fine necessarily accrued to

the United States.

II. Criminal contempts are offenses against the United

States within the meaning of the Pardon Clause of the

Constitution.

as an offense criminal in its nature. Michaelson v. United

States 266 U. 8. 42; Toledo Newspaper Co. v. United

States, 247 U. S. 402; Gompers v. United States, 233 U.S.

604; New Orleans v. Steamship Co., 20 Wall. 387; Ez

parte Kearney, 7 Wheat. 38. See also Bessette v. Conkey

Co., 194 U. S. 324; Pino v. United States, 278 Fed. 479;

United States v. Berry, 24 Fed. 780; In re Litchfield, 13

Fed. 863; In re Ellerbe, 13 Fed. 530; United States v.

Jacobi, Fed. Cas. No. 15460; Fanshawe v. Tracy, Fed Cas.

No. 4643. And it is so treated throughout the United

States. See e. g., Sharp v. State, 102 Tenn. 9; State v.

Dent, 29 Kan. 416; In re Buckley, 69 Cal. 1; Williamson's

Case, 26 Pa. St.-9; 13 Corpus Juris, 7.

See the notable series of essays in the Law Quarterly

Review: 24 Law Quar. Rev. 184, 266 (1908) ; 25 id. 238,

354 (1909) ; 36 id. 394 (1920) ; 37 id. 191 (1921); 38 id.

185 (1922) ; 40 id. 43 (1924) ; especially 40 id. 54, 57, 60.

These are summarized in the Harvard Law Review for

June, 1924.

102 OCTOBER TERM, 1924.

Argument of the Attorney General. 267 U.S.

It is true that the court has said that criminal con-

tempts are sui generis and proceedings for their punish-

ment are not “ criminal prosecutions.” Myers v. United

States, 264 U. S. 95; but, nevertheless, they constitute

offenses against the United States. State v. Magee Pub-

lishing Co., 29 N. M. 455, 224 Pac. 1028.

Punishment for contempt of court is not imposed out

of any personal consideration for the judge, but only to

uphold the authority and dignity of the law. While an

injured party may condone a disobedience of judicial or-

ders in a civil suit, a court may not condone a criminal

contempt, for it constitutes an offense, not against the

judge, but against the Government. Jn re Rice, 181 Fed.

217; State v. Sauvinet, 24 La. Ann. 119; Ex parte H.ckey,

12 Miss. 751; State v. Magee Publishing Co., supra;

Sharp v. State, 102 Tenn. 9. See also In re Ellerbe, 13

Fed. 530; In re Mason, 43 Fed. 510; Fanshawe v. Tracy,

Fed. Cas. No. 4643, 8 Fed. Cas. 997; 13 Corpus Juris, 97.

III. The history of the power to pardon for criminal

contempts establishes that, by the grant of the pardon-

ing power to the President by the Constitution, it was

intended to embrace criminal contempts in the phrase

“ offences against the United States.”

Except as to cases of treason, there was no substantial

objection to the grant of pardoning power. In cases of

impeachment the restraint upon the power was made

greater than in England. In all other respects the power

to pardon offenses against the Government was, as in

England, unlimited, and the propriety of this broad grant

of power was unquestioned.

In England contempts of court were ‘within the par-

doning power of the Crown. The case most frequently

cited is that of Rex v. Buckenham (1665, 1666) 1 Siderfin,

211, 1 Keble, 751, 787, 852. The pardoning power of the

King was also recognized in numerous other cases involv-

ing contempts of court. Anonymous (1674) Cases in

EX PARTE GROSSMAN. 103

87 Argument of the Attorney General.

Chancery, 238; Fulwood v. Fulwood (1584-5) Tothill, 46;

King and Codrington vy. Rodman (1631) Cro. Car. 198,

W. Jones, 228; Bartram v. Dannett (1676) Finch, 253;

Phipps v. Earl of Anglesea (1721), 1 P. Williams, 696;

Bishop’s New Criminal Law, Sec. 913. Thomas of Char-

tham v. Benet of Stamford (1313-1314) 24 Selden Soci-

ety, 185, is also apparently in point.

At one time this power of pardoning contempts ex-

tended even to civil contempts (Young v. Chamberlaine,

Tothill, 41); and as even such a contempt as nonper-

formance of an order in bankruptcy was treated as breach

of the peace (Ex parte Whitchurch (1749) 1 Atk. 37 )

it could have been pardoned. Before the adoption of our

Constitution, however, civil contempts had been distin-

guished from criminal contempts. King v. Myers (1786)

1 Term, 265. Blackstone pointed out (IV, 285) that

where contempts and the process thereon were properly

the civil remedy of individuals for private injury they

were not released or affected by the general act of pardon.

Glanville had said (book 7, chap. 17, last sentence) :

“The King, indeed, is accustomed to remit the pains of

forfeiture and outlawry, yet can not he, under color of

this prerogative, infringe upon the rights of others.” The

rule as to civil contempts was apparently an exception to

an earlier rule under which all contempts were par-

donable. See Hawkins, Pleas of the Crown, 6th ed. pub-

lished in 1787, IT, 549, 553; Blackstone Comm., IV, 398,

399.

Where a pardon was granted to one who had been con-

victed and fined for maintaining a nuisance, he was not

discharged from abatement of the nuisance, for that was

a grievance to other persons, but he was discharged from

the fine, which was simply a punishment of the offender.

Rex & Regina vy. Wilcox, 2 Salkeld, 458.

The pardoning power has substantially the same scope

as it had in England when the Constitution was adopted.

Ez parte Wells, 18 How. 307.

104 OCTOBER TERM, 1924.

Argument of the Attorney General. 267 U.S.

The President may pardon all offenses against the

United States except in cases of impeachment. Fz parte

Garland, 4 Wall. 333.

IV. The power of the President to pardon criminal con-

tempts of court has been repeatedly exercised and has

never been challenged heretofore. 2 Op. A. G. 329; 3

Id. 622; 4 Id. 317; 4 Id. 458; 19 Id. 476. Unreported

opinions of Attorney General Knox in the McKenzie

Case (May 1, 1901) and of Attorney General Daugherty

in the Craig Case (Dec. 3, 1923).

Records of the Department of Justice prove that in

twenty-seven cases of criminal contempt in addition to

these cited the President has pardoned; and probably

there have been many others.

The circumstances attending the granting of the pardon

have not been uniform. In some cases the records do

not show that the judge who imposed the sentence was

consulted; in some the judge recommended pardon; in

some he refused to make such a recommendation; in two

of the cases the Attorney General advised that the pardon

be denied. So far as shown by the records and files of

the Department of Justice, however, there has not been

@ single case of criminal contempt of a federal court from

the establishment of the Government down to the case

now in isue in which any judge or any Attorney General

has questioned the power of the President to pardon the

stances; and it has been expressly or impliedly recog-

nized by every Attorney General and every judge who

has considered the question in a concrete case.

V. The weight of authority in cases directly involving

pardons for contempt of court supports the power of the

President to grant this pardon. 4

Federal judges who had sentenced persons to punish-

ment for contempt of court have in repeated instances

recommended the pardoning of those offenders by the

EX PARTE GROSSMAN. : 105

87 Argument of the Attorney General.

President. One of the judges who did so was Associate

Justice McKinley of this Court, 3 Op. A. G. 622.

Another judge who took a similar view of the power of

the President was District Judge Blatchford. In re Mul-

lee, 7 Blatch. 23, 17 Fed. Cas. 968. Unfortunately he

went too far in failing to recognize that where a fine is

imposed not by way of punishment but for the benefit of

a private party to whom it is to be paid, the rule as to

the pardoning of offenses against the United States does

not apply. See Hendryz v. Fitzpatrick, 19 Fed. 810.

See Ex parte Hickey, 12 Miss. 751; State ex rel. Van

Orden v. Sauvinet, 24 La. Ann. 119; Sharp v. State, 102

Tenn. 9.

Of course, the President of the United States does not

stand in the same relation to the courts of this country

as existed between the King of England and his own

courts except in so far as that relation was created by our

Constitution. But the Constitution does contain an ex-

press grant of pardoning power to the President, and this

court has said that the words of that grant are to be inter-

preted as they were understood when they were placed in

the Constitution, as giving to the President the same

power to grant pardons as had been possessed by the King

of England.

The proposition (In re Nevitt, 117 Fed. 448) that the

judicial power of the United States was granted in its

entirety, free from executive control or supervision is

untrue; it would exclude all pardoning power whatever.

The President would not be drawing to himself all the

real judicial power by a free exercise of the right to pardon

offenses any more than he would be drawing to himself

all the legislative power by freely pardoning violators

of the criminal laws. He would not be exercising any

affirmative judicial or legislative power in either case, and

he could not exercise such power.

The fair question is, rather, whether he may thwart the

exercise of judicial power to punish offenders against the

106 OCTOBER TERM, 1924.

Argument of the Attorney General. 267 U.S.

Government by granting pardons. The answer is that

the Constitution does establish a system of checks and

that the pardoning power does furnish a potential check

upon some judicial actions. If the President abuses this

power he may be impeached. It is, however, no more in-

herently unreasonable that the President should have the

power to pardon criminal contempts than that he should

have the power to pardon treason.

It is true that a trial for criminal contempt is sui gen-

erig; it is true that it has been held that our Constitution

does not give to the person accused of criminal contempt

all of the protection that is given to a person accused of

a typical crime; but whether the trial is before a jury

or not, the punishment is for an offense, and that offense

is really against the Government. Gompers v. United

States, 233 U. S. 604. Moreover, it could not properly

be said in the Verage Case, 177 Wisc. 295, nor in the

present case, that the prisoner “interfered with the

proper function of an independent branch of govern-

ment.” He did not commit “an offense which tends to

frustrate the administration of justice and to interfere

with the operation of the courts.” His offense was simply

a disobedience of a valid order of the court just as the

ordinary crime is a disobedience of a valid law.

Courts have recognized that a criminal contempt can

not be condoned by the court (In re Rice, 181 Fed. 217);

that sentence can not be suspended indefinitely (Ez parte

United States, 242 U. S. 27); and that “in the absence

of statute providing otherwise, the general principle ob-

tains that a court can not set aside or alter its final judg-

ment after the expiration of the term at which it was

entered, unless the proceeding for that purpose was be-

gun during that term.” United States v. Mayer, 235

U. S. 55, 67. The power to grant pardons has been

entrusted to the President and has not neon entrusted

to the courts,

EX PARTE GROSSMAN,

87 Opinion of the Court.

Mr. Francis M. Curlee and Mr. Charles M. Hay, by

leave of Court, filed a brief as amici curiae.

Mr. Cuter Justice Tarr 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 Correc-

tion, Cook County, Illinois. The respondent has an-

swered 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 maintain-

ing @ 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 infor-

mation 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 sen-

tenced to imprisonment in the Chicago House of Correc-

tion 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 sen-

tence 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 not-

withstanding the pardon. 1 Fed. (2d) 941. The only

108 OCTOBER TERM, 1924.

Opinion of the Court. 267 U.S.

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 Jus-

tice, 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 effec-

tiveness 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 Consti-

tution 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

EX PARTE GROSSMAN. 109

87 Opinion of the Court.

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 coramon 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 considera-

tion of many of them, but when they came to put their

conclusions into the form of fundamental law in a com-

pact draft, they expressed them in terms of the common

law, confident that they could be shortly and easily under-

stood.

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, 160):

“As this power had been exercised, from time imme-

morial, 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 re-

specting the operation and effect of a pardon, and look

into taeir books for the rules prescribing the manner in

which it is to be used by the person who would avail him-

self of it.”

In Ex parte William Wells, 18 Howard, 307; 311, the

question was whether the President under his power to

pardon could commute a death sentence to life imprison-

ment by granting a pardon of the capital punishment on

condition that the convict be imprisoned during his net-

ural 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

110 OCTOBER TERM, 1924.

Opinion of the Court. 267 U.S.

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

crimes and misdemeanors and as he has done to the pres-

ent 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; Ful-

wood v. Fulwood (1585), Toothill, 46; Rez 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.

EX PARTE GROSSMAN. 111

87 Opinion of the Court.

These cases also show that, long before our Constitu-

tion, 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 in so far 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], 1388; Welles-

ley 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, 607; Bessette v. Conkey Co., 194 U. S. 324; Aleaander

v. United States, 201 U.S. 117 ; Union Tool Co. v. Wilson,

259 U. S. 107, 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 be-

tween the two kinds of contempts. For civil contempts,

the punishment is remédial 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.

112 OCTOBER TERM, 1924.

Opinion of the Court. 267 U.S.

With this authoritative background of the common law

and English history before the American Revolution to

show that criminal contempts were within the under-

stood scope of the pardoning power of the Executive, we

come now to the history of the clause in the Constitu-

tional Convention of 1787. The proceedings of the Con-

vention from June 19, 1787 to Juiy 23rd, were by resolu-

tion 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 impeach-

ment” 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 re-

prieves 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 ap-

proved by the Committee and after discussion was de-

feated in the Convention September 15th (II Farrand,

626, 627).

EX PARTE GROSSMAN. ~ 113

87 Opinion of the Court. .

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 can not 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 Conven-

tion 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 preroga-

tive 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 impeach-

42684°—25-—-—8 j

114 OCTOBER TERM, 1924.

Opinion of the Court. 267 U.S.

meanors 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 certi-

fied from the District Court upon a demurrer to an indict-

ment for criminal libel at common law. The Court sus-

tained 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 can not 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 stat-

ute; 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 rati-

fication of the Constitution, the power and jurisdiction

of federal courts to indict and prosecute common law

EX PARTE GROSSMAN. 115

87 Opinion of the Court.

crimes within the scope of federal judicial power was

thought to exist by most of the then members of

Court. The charge of Chief Justice Jay to the

Jury in the United States Circuit Court at Richmond in

116 OCTOBER TERM, 1924.

Opinion of the Court. 267 U.S.

Gompers v. United States, 233 U. S. 604. In that case

this Court said (p. 610):

“It is urged in the first place that contempts can not

be crimes, because, although punishable by imprisonment

and therefore, if crimes, infamous, they are not within the

protection of the Constitution and the amendments giv-

ing 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,

281, 282. It does not follow that contempts of the class

under consideration are not crimes, or rather, in the lan-

guage 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 constitu-

tional 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. 8. 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.8., pp. 375, 383. Mat-

ter 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. Hx parte Kearney,

7 Wheat. 38,43. Bessette v. W. B. Conkey Co., 194 U. 8.

324, 328, 331, 332. Gompers v. Bucks Stove & Range

Co., 221 U. 8, 418, 441.”

EX PARTE GROSSMAN. 117

87 Opinion of the Court.

The recent case of Michaelson v. United States fully

bears out the same view. 266 U. S. 42, 66, 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 “of-

fences” 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 amend-

ments, “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 crimi-

nal prosecutions. But.as has been pointed out in Shick

v. United States, 195 U. 8. 65, the term “ offences” is

used in the Constitution in a more comprehensive sense

than are the terms “crimes” and “criminal prosecu-

tions.” In Myers v. United States, 264 U. 8. 95, 104, 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. 8. 324, 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 Constitu-

tion, courts had been held to be inherently empowered

118 OCTOBER TERM, 1924.

Opinion of the Court. 267 U.S.

to protect themselves and the function they perform by

summary proceeding without a jury to punish disobedi-

ence 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 Consti-

tution are not of significance in determining the scope of

pardons of “ offences against the United States” in Arti-

cle 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 p&ssing 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 con-

tempts 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 princi-

ples 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

A.

(19 Op. A. G. 476), rendered similar opinions. Similar

views were expressed, though the opinions were not re-

ported, by Attorney General Knox in 1901 and by Attor-

ney General Daugherty in 1923. Such long practice

under the pardoning power and acquiescence in it strongly

EX PARTE GROSSMAN. 119

87 Opinion of the Court.

sustains the construction it is based on. Stuart v. Laird,

1 Cranch, 299, 308; Cooley v. Board of Wardens, 12

How. 299, 315; Lithographic Company v. Sarony, 111

U. 8. 58, 57; The Laura, 114 U. §. 411, 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 ez 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 Jn re Mullee, 7 Blatchford, 23; Ez parte

Hickey, 12 Miss. 751; Louisiana v. Sauvinet, 24 La. Ann.

119; Sharp v. State, 102 Tenn. 9; State v. Magee Publish-

ing 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 Con-

gress and the Executive. Complete independence and

separation between the three branches, however, are not

attained, or intended, as other provisions of the Consti-

tution and the normal operation of government under it

120 OCTOBER TERM, 1924.

Opinion of the Court. 267 U.S.

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 Execu-

tive can reprieve or pardon all offenses after their com-

mission, either before trial, during trial or after trial, by

individuals, or by classes, conditionally or absolutely, and

this without modification or regulation by Congress. Ez

parte Garland, 4 Wall. 333, 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 Constitu-

tion 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 re-

straints 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 neces-

sarily controlling rule of construction. The fact is that °

the Judiciary, quite as much as Congress and the Execu-

tive, is dependent on the codperation of the other two,

that government may go on. Indeed, while the Consti-

tution 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 codperation, 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 enforce-

ment 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

EX PARTE GROSSMAN. i21

87 Opinion of the Court.

guilt. To afford a remedy, it has always been thought

essential in popular governments, as well as in mon-

archies, to vest in some other authority than the courts

power to ameliorate or avoid particular criminal judg-

ments. It is a check entrusted to the executive for special

cases. To exercise it to the extent of destroying the de-

terrent effect of judicial punishment would be to pervert

it; but whoever is to make it useful must have full dis-

cretion to exercise it. Our Constitution confers this dis-

cretion on the highest officer in the nation in confidence

that he will not abuse it. An abuse in pardoning con-

tempts would certainly embarrass courts, but it is ques-

tionable how much more it would lessen their effective-

ness than a wholesale pardon of other offenses. If we

could conjure up in our minds a President willing to para-

lyze 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 char-

acter as that of the excessive pardons of other offenses.

The difference does not justify our reading criminal con-

tempts 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.

122 OCTOBER TERM, 1924.

Syliabus. 267 U.S.

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 con-

viction. 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 preju-

dice 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 strength-

ened by ignoring precedent and practice and minimizing

the importance of the codrdinating checks and balances

of the Constitution.

The rule is made absolute and the petitioner is dis-

charged.