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Nixon Pardon - Legal and Historical Precedents (3)
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Nixon Pardon - Legal and Historical Precedents (3)
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The original documents are located in Box 34, folder "Nixon Pardon - Legal and Historical
Precedents (3)" of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
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Exact duplicates within this folder were not digitized.
Memorandum
LAW ENFORCEMENT ASSISTANCE ADMINISTRATION
TO
: Philip Buchen
DATE: October 10, 1974
Counsel to the President
FROM : Robert Alan Jones RAdones
Special Assistant to the Administration
SUBJECT:
In accordance with our conversation yesterday, I have investigated
all possible avenues of historical authority with regard to pardons.
In the memo which follows and is attached to this, I have set out
a brief historical prospective of the use of the pardon power as it
applies to the Chief Executive.
To avoid duplication of research, I am hereafter listing the
authorities that I consulted and am offering to you a very brief
background analysis from the materials that I digested.
I utilized the following sources:
(1) After Conviction, Goldfarb & Singer, Simon &
Schuster (1973);
(2) Amnesty: A Brief Historical Overview, John C.
Etridge, Congressional Research Service/Library
of Congress (1973) (UB340USD);
(3) The Constitution of the United States of America:
Analysis and Interpretation, Senate Document
No. 92-82, Congressional Research Service/Library
of Congress (1973);
(4) The President, Office and Powers, Edwin S. Corwin,
George Grady Press, 3rd Edition (1948);
(5) Pardoning Power of the President, W. H. Humbert,
American Council on Public Affairs (1941); and
(6) The Federalist, Alexander Hamilton (1788), Jacob E.
Cooke (Editor), Wesleyan University Press.
(7) Executive Clemency in Pennsylvania, William Smithers
and George D. Thorn (1909)
BERALD FORD LIBRARY
Digitized from Box 34 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
There was a dearth of material dealing with the specific questions
that we are interested in. It seems clear that the pardon or
clemency power arose historically from two perspectives. The
first was the monarchial power which amounted at that time to
almost absolute control of the citizenry by the king, including the
power to punish or forgive. The second was the powers of forgiveness
and absolution whose origins were in the Church. In any event, by
the time of the American Constitutional Convention the pardon power
had been established for an excess of 1,000 years in western
civilization. Therefore, there was no debate to our Constitutional
Convention as to whether there should be a pardon power. The only
issues were as to what limitations on the power should be placed on
the Chief Executive. For example, the question arose as to whether
the power should be limited to post-conviction situations. Another
point of debate was whether or not the President should have the
right to grant pardons in cases involving treason against the United
States. Of course, both of the foregoing were decided in favor of
granting the Executive the broadest possible power and he was limited
only by language which forbade him from exercising the pardon power
in the case of impeachment of public officials.
Some suggested language and appropriate quotations on the above
sources are attached as a separate memo.
FORD
Memorandum
LAW ENFORCEMENT ASSISTANCE ADMINISTRATION
TO
: Philip Buchen
DATE: October 10, 1974
Counsel to the President
FROM : Robert Alan Jones RAdones
Special Assistant to the
Administration
SUBJECT: Suggested Material for Use in the President's Statement
Respecting the Pardon of Richard M. Nixon
Historically the power of the Executive to forgive
(pardon) was brought to this country from England
as a long established part of western jurisprudence.
The power of the head of state is traceable to our
modern institutions from the earliest of the world's
civilizations. The ancient theocracies held court
in their temples. The Hebrews constructed their
tabernacles SO that tables of the law were covered by
the "mercy seat." (Smithers p. 57: Smith; Old Testament
History p. 232, ed. 1879). The Greeks maintained an
alter of mercy at alters long after the development of
political institutions.
It appears to have been the nature of civilization to
provide some means of correction for the "inevitable
errors which arise from imperfect human institution
being executed by imperfect men." (Smithers p. 56.)
Even through the Dark Ages the concept of clemency
survived although abused by the feudal Lords. However,
as Feudalism gave way to Intelligence and the Church
gained power the "devine right of Kings" again
combined the religious and political functions of the
Executive.
Early English Legal Scholars from Bracton and Bacon to
coke reemphasized the nature of executive clemency.
Perhaps Bracton expressed the view best in his essay
"Of Judicature." "In cases of life and dealth, judges
ought, SO far as the law permiteth, in justice to
remember mercy and to cast a severe eye upon the example
but a merciful eye upon the person." (Smithers, p. 12.)
FORD is LIBRARY
"All pardoning power can have been granted
by the state to some individual only for
better obtaining of the true ends of the law,
or the better fulfillment of its true spirit
not of its mere form. "
[ (Smithers, p. 60) Lieber: Manual of Political Ethics,
p. 591, ed. 1839] This was basically the state of the
law when the first American colonists arrived.
From that point the colonies under the King continued
in the English Tradition to the time of the revolution.
(I would suggest that the President use the above
historical material for his own background information
and begin with a discussion dealing directly with our
own Constitution.)
It is clear that the framers of the Constitution
specifically intended a wide discretionary power
respecting pardon be reposed in the chief executive.
As Alexander Hamilton stated in the Federalist Papers,
(no. 74),
"Humanity and good policy conspire to dictate, that
the benign prerogative of pardoning should be as
little as possible fettered or embarrased. The
criminal code of every country partakes so much of
necessary severity, that without an easy access
to exceptions in favor of unfortunate guilt,
justice would wear a countenance too sanguinary and
cruel. As the sense of responsibility is always
strongest in proportion as it is undivided, it
may be inferred that a single man would be most
ready to attend to the force of those motives, which
might plead for a mitigation of the rigor of the law,
and least apt to yield to considerations, which
were calculated to shelter a fit object of its
vengence. "
Hamilton further argued that at times the ability to act
with a great deal of dispatch was required, for example
in times of great public turmoil, and therefore the
power needed to be placed unfettered in a single
executive:
"
a well timed offer of pardon
may restore
the tranquility of the commonwealth; and which, if
suffered to pass unimproved it may never be possible
afterwards to recall. " It is in this sense that I
(Gerald Ford) felt the necessity to act immediately to
bring the public debate over the status of Mr. Nixon
to a halt.
FORD
GERALD
LIBRARY
It has been suggested by some that the fact of the
pardon for Richard M. Nixon would prevent the whole
truth about the "Watergate" from having a public airing.
However this is simply not the case. It is my under-
standing of the law that the granting of executive
clemency by me to the former president and his acceptance
of that grant precludes him from being able to raise
the privilege against self incrimination as a bar to
compelling his testimony as a witness in any federal
trial dealing with the facts of this matter (Murphy V.
Waterfront Commission, 378 U.S. 52, 79 (1964) See also
Malloy V. Hogan, 378 U.S. 1 (1964) ) Therefore, it is
more likely that the former president may be called on
to testify and the truth of the "Watergate" matter may
be brought to light then would be possible if
Richard Nixon were able to decline to testify on Fifth
Amendment grounds.
Further, there is now no question left as to delaying
the "Watergate" trials in order to abate possible
predjudicial pretrial publicity surrounding the
indictment and arraignment of a former president of the
United States.
We all must remember that as was stated by Justice
Oliver Wendell Holmes as far back as 1927:
"A pardon is our days is not a private act
of grace from an individual happening to
possess power. It is part of the constitutional
scheme. When granted it is a determination
of the ultimate authority that the public
welfare will be better served by inflicting
less than what the judgement fixed
"
(Biddle V. Perovich, 247 U.S. 480, 486 (1927) ).
It was my determination that in this most exceptional
of cases the public good would best be served by
pardoning Richard Nixon prior to allowing a further
hardening of the division in this country respecting
whether or not Mr. Nixon should be indicted and
prosecuted. As I have stated, I believe that my actions
will increase the probability of a full disclosure to
the American public of all the relevant acts surrounding
the "Watergate" incident and aftermath. I have taken
this responsibility upon my shoulders in the genuine
belief that these actions were and are what is best for
the country.
[I have attached some source material for your possible
use, and will be available to render further assistance
when necessary. ]
FORD or LIBRARY we
-
Form DJ-96a
(Rev. 6-22-66)
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ROUTING SLIP
TO:
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2.
3.
4.
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REMARKS
d sent a copy of the enclosed
material to Ken Layarus and
Jack Mars h also -
call me if & can help!
FORD is LIBRARY 079839
FROM:
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BUILDING & ROOM
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DATE
Olan Jones.
THE
Federalist
Edited, with Introduction and Notes, by
JACOB E. COOKE
Wesleyan University Press
Middletown, Connecticut
LIBRARY
500
The Federalist No. 74
[HAMILTON]
The Federalist No. 74
[73]
ALEXANDER HAMILTON
March 25, 1788
To the People of the State of New York.
THE President of the United States is to be "Commander in
Chief of the army and navy of the United States, and of the mi-
litia of the several States when called into the actual service of
the United States." The propriety of this provision is so evident
1
in itself; and it is at the same time so consonant to the precedents
of the State constitutions in general, that little need be said to
explain or enforce it. Even those of them, which have in other re-
spects coupled the Chief Magistrate with a Council, have for the
2
most part concentred the military authority in him alone. Of all
the cares or concerns of government, the direction of war most
peculiarly demands those qualities which distinguish the exer-
cise of power by a single hand. The direction of war implies the
direction of the common strength; and the power of directing
and employing the common strength, forms an usual and essen-
tial part in the definition of the executive authority.
"The President may require the opinion in writing of the
principal officer in each of the executive departments upon any
subject relating to the duties of their respective offices." This I
consider as a mere redundancy in the plan; as the right for which
it provides would result of itself from the office.
3
He is also to be authorised "to grant reprieves and pardons
for offences against the United States except in cases of impeach-
ment." Humanity and good policy conspire to dictate, that the
From The New-York Packet, March 25, 178S. This essay appeared on March
26 in The Independent Journal. It was numbered 74 in the McLean edition
and 73 in the newspapers.
FORD LIBRAR
[HAMILTON]
[HAMILTON]
The Federalist No. 74
501
benign prerogative of pardoning should be as little as possible
fettered or embarrassed. The criminal code of every country
partakes so much of necessary severity, that without an easy
access to exceptions in favor of unfortunate guilt, justice would
wear a countenance too sanguinary and cruel. As the sense of
arch 25, 1788
-
responsibility is always strongest in proportion as it is undivided,
it may be inferred that a single man would be most ready to at-
unmander in
tend to the force of those motives, which might plead for a
ad of the mi-
mitigation of the rigor of the law, and least apt to yield to con-
ial service of
siderations, which were calculated to shelter a fit object of its
is so evident
vengcance. The reflection, that the fate of a fellow creature de-
IC precedents
pended on his sole fiat, would naturally inspire scrupulousness
ed be said to
and caution: The dread of being accused of weakness or con-
e in other re-
nivance would beget equal circumspection, though of a differ-
have for the
ent kind. On the other hand, as men generally derive confidence
alone. Of all
from their numbers, they might often encourage each other 4
of war most
in an act of obduracy, and might be less sensible to the apprehen-
ish the exer-
sion of suspicion or censure for an injudicious or affected clem- 5
r implies the
ency. On these accounts, one man appears to be a more eligible
of directing
dispenser of the mercy of the government than a body of men.
al and essen-
The expediency of vesting the power of pardoning in the
President has, if I mistake not, been only contested in relation
riting of the
to the crime of treason. This, it has been urged, ought to have
its upon any
depended upon the assent of one or both of the branches of the
ices." This I
legislative body. I shall not deny that there are strong reasons
lit for which
to be assigned for requiring in this particular the concurrence
of that body or of a part of it. As treason is a crime levelled at
and pardons
the immediate being of the society, when the laws have once as-
of impeach-
certained the guilt of the offender, there seems a fitness in re-
ate, that the
fering the expediency of an act of mercy towards him to the
judgment of the Legislature. And this ought the rather to be the
ared on March
case, as the supposition of the connivance of the Chief Magis-
IcLean edition
trate ought not to be entirely excluded. But there are also strong
objections to such a plan. It is not to be doubted that a single
LISAMEY GERALD FORD
502
The Federalist No. 74
[HAMILTON]
man of prudence and good sense, is better fitted, in delicate
conjunctures, to balance the motives, which may plead for and
against the remission of the punishment, than any numerous
body whatever. It deserves particular attention, that treason
will often be connected with seditions, which embrace a large
proportion of the community; as lately happened in Massachu-
setts. In every such case, WC might expect to see the repre-
sentation of the people tainted with the same spirit, which had
given birth to the offense. And when parties were pretty equally
6 matched, the secret sympathy of the friends and favorers of the
7 condemned person, availing itself of the good nature and weak-
ness of others, might frequently bestow impunity where the
terror of an example was necessary. On the other hand, when
the sedition had proceeded from causes which had inflamed the
resentments of the major party, they might often be found ob-
stinate and inexorable, when policy demanded a conduct of
forbearance and clemency. But the principal arguments for re-
posing the power of pardoning in this case in the Chief Magis-
trate is this - In scasons of insurrection or rebellion, there are
often critical moments, when a well timed offer of pardon to the
insurgents or rebels may restore the tranquility of the common-
wealth; and which, if suffered to pass unimproved, it may
never be possible afterwards to recall. The dilatory process of
convening the Legislature, or one of its branches, for the pur-
pose of obtaining its sanction to the measure, would frequently
be the occasion of letting slip the golden opportunity. The loss of
a week, a day, an hour, may sometimes be fatal. If it should be
observed that a discretionary power with a view to such con-
tingencies might be occasionally conferred upon the President;
it may be answered in the first place, that it is questionable
whether, in a limited constitution, that power could be dele-
gated by law; and in the second place, that it would generally
Hamilton referred to Shays' Rebellion. See Essay 6. (Editor)
GERALD : FORD
[HAMILTON]
[HAMILTON]
The Federalist No. 75
503
I, in delicate
be impolitic before-hand to take any step which might hold out
lead for and
the prospect of impunity. A proceeding of this kind, out of
y numerous
the usual course, would be likely to be construed into an argu-
that treason
ment of timidity or of weakness, and would have a tendency to
Drace a large
embolden guilt.
in Massachu-
PUBLIUS.
'e the repre-
it, which had
retty equally
vorers of the
The Federalist No. 75
:re and weak-
[74]
y where the
hand, when
ALEXANDER HAMILTON
inflamed the
be found ob-
March 26, 1788
To the People of the State of New York.
1 conduct of
:nents for rc-
THE president is to have power "by and with the advice and
Chief Magis-
consent of the senate. to make treaties, provided two-thirds of the
on, there are
senators present concur." Though this provision has been as-
ardon to the
sailed on different grounds, with no small degree of vehemence,
the common-
I scruple not to declare my firm persuasion, that it is one of
ved, it may
the best digested and most unexceptionable parts of the plan.
ry process of
One ground of objection is, the trite topic of the intermixture
for the pur-
of powers; some contending that the president ought alone to
Id frequently
possess the power of making treaties; and others, that it ought
1,2
y. The loss of
to have been exclusively deposited in the senate. Another
it should be
source of objection is derived from the small number of persons
to such con-
by whom a treaty may be made: Of those who espouse this ob-
he President;
jection, a part are of opinion that the house of representatives
questionable
ought to have been associated in the business, while another
ould be delc-
part seem to think that nothing more was necessary than to
ild generally
From The Independent Journal, March 26, 1788. This essay appeared on
March 28 in The New-York Packet. It was numbered 75 in the McLean
edition and 74 in the newspapers.
LIBRARY GERALD R. FORD
blic Affairs
extensive diffusion
bility of American
THE PARDONING POWER
Public Affairs is
oritative facts and
OF THE PRESIDENT
aporary social and
public knowledge
By W. H. Humbert
lies and pamphlets,
imulation of inter-
f research projects,
FOREW ORD
rangement of radio
eleases, compilation
By W. W. Willoughby
eration with other
acts presented and
hip deserve careful
not, however, com-
in any other way.
ecessarily represent
ns.
National Board are
ayncs Holmes. Dr.
ynd, Paul Kellogg,
Rev. Henry Smith
E. Witte. Willard
lizabeth Christman,
Burns. John B.
Jett Lauck. Prof.
Homan, Dr. Bruce
k Foreman, Delbert
Lindeman, Clarence
k M. Eichelberger,
)
m, E. J. Coil, Dr.
Prof. Mark May.
ric A. Our, and Dr.
American Council On Public Affairs
apper is Executive
WASHINGTON, D.C.
QENALD B. FORD LIBRARY
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these materials.
92D CONGRESS
2d Session
}
SENATE
{
DOCUMENT
No. 92-82
THE CONSTITUTION
OF THE
UNITED STATES OF AMERICA
ANALYSIS AND INTERPRETATION
ANNOTATIONS OF CASES DECIDED BY THE
SUPREME COURT OF THE UNITED STATES
TO JUNE 29, 1972
PREPARED BY THE
CONGRESSIONAL RESEARCH SERVICE
LIBRARY OF CONGRESS
LESTER S. JAYSON, SUPERVISING EDITOR
JOHNNY H. KILLIAN, EDITOR
SYLVIA BECKEY, ASSOCIATE EDITOR
THOMAS DURBIN, ASSOCIATE EDITOR
U.S. GOVERNMENT PRINTING OFFICE
81-189 0
WASHINGTON : 1973
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402 - Price $20.50
LIBRARY GERALD ? FORD
Stock Number 5271-00308
474
ART. I-EXECUTIVE DEPARTMENT
Sec. 2-Powers and Duties of the President
CL 1-Pardons
The idea ultimately failed. partly because of the diversity of ideas
concerning the council's make-up. One member wished it to consist of
"members of the two houses." another wished it to comprise two rep-
resentatives from each of three sections. "with a rotation and duration
of office similar to those of the Senate." The proposal which had the
strongest backing was that it should consist of the head of departments
and the Chief Justice of the Supreme Court. who should preside when
the President was absent. Of this proposal the only part to survive
was the above cited provision. The consultative relation here con-
templated is an entirely one-sided affair. is to be conducted with each
principal officer separately and in writing. and is to relate only to the
duties of their respective offices. The Cabinet. as we know it today,
that is to say, the Cabinet meeting. was brought about solely on the
initiative of the first President.³ and may be dispensed with on presi-
dential initiative at any time, being totally unknown to the Constitu-
tion. Several Presidents have in fact reduced the Cabinet meeting to
little more than a ceremony with social trimmings.
PARDONS AND REPRIEVES
The Legal Nature of a Pardon
In the first case to be decided concerning the pardoning power,
Chief Justice Marshall. speaking for the Court. said: ".As this power
had been exercised from time immemorial by the executive of that
nation whose language is our language, and to whose judicial institu-
tion ours bear a close resemblance: we adopt their principles respect-
ing 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 per-
son who would avail himself of it. A pardon is an act of grace. proceed-
ing from the power entrusted with the execution of the laws. which
exempts the individual. on whom it is bestowed. from the punishment
the law inflicts for a crime he has committed. It is the private, though
official act of the executive magistrate, delivered to the individual for
whose benefit it is intended. and not communicated officially to the
Court.
A pardon is a deed. to the validity of which delivery is
essential, and delivery is not complete without acceptance. It may then
be rejected by the person to whom it is tendered: and if it be rejected.
we have discovered no power in a court to force it on him." Marshall
3 E. Corwin, The President-Office and Powers 1787-1957 (New York: 4th ed.
1957), S2.
'L. White. The Federalists-1 Study in Administrative History (New York:
1948), ch. 4.
E. Corwin. The President-Office and Powers 1787-1957 (New York: 4th
ed. 1957). 19, 61, 79-S5, 211, 205-299, 312, 320-323, 490-493.
BERAAD FORD LIBRARY
ART. II-EXECUTIVE DEPARTMENT
475
Sec. 2-Powers and Duties of the President
Cl. 1-Pardons
continued to hold that to be noticed judicially this deed must be
pleaded, like any private instrument.¹
In the case of Burdick V. United States,² Marshall's doctrine was
put to a test that seems to have overtaxed it. perhaps fatally. Burdick,
having declined to testify before a federal grand jury on the ground
that his testimony would tend to incriminate him, was proffered by
President Wilson "a full and unconditional pardon for all offenses
against the United States" which he might have committed or partici-
pated in in connection with the matter he had been questioned about.
Burdick, nevertheless, refused to accept the pardon and persisted in
his contumacy with the unanimous support of the Supreme Court.
"The grace of a pardon," remarked Justice McKenna sententiously,
"may be only a pretense involving consequences of even greater
disgrace than those from which it purports to relieve. Circumstances
may be made to bring innocence under the penalties of the law. If so
brought, escape by confession of guilt implied in the acceptance of a
pardon may be rejected,
Nor did the Court give any attention
to the fact that the President had accompanied his proffer to Burdick
with a proclamation, although a similar procedure had been held to
bring President Johnson's amnesties to the Court's notice.⁴ In 1927,
however, in sustaining the right of the President to commute a sen-
tence of death to one of life imprisonment, against the will of the pris-
oner, the Court abandoned this view. "A pardon in our days," it said,
"is not a private act of grace from an individual happening to possess
power. It is a part of the constitutional scheme. When granted it is the
determination of the ultimate authority that the public welfare will be
better served by inflicting less than what the judgment fixed." 5
Whether these words sound the death knell of the acceptance doctrine
is perhaps doubtful.⁶ They seem clearly to indicate that by substitut-
ing a commutation order for a deed of pardon, a President can always
have his way in such matters, provided the substituted penalty is au-
thorized by law and does not in common understanding exceed the
original penalty.
1 United States V. Wilson, 7 Pet. (32 U.S.) 150, 160-161 (1833).
236 U.S. 79, 86 (1915).
Id., 90-91.
4 Armstrong V. United States. 13 Wall. (SO U.S.), 134. 156 (1872). In Brown V.
Walker, 161 U.S. 591 (1896), the Court had said: "It is almost a necessary
corollary of the above propositions that. if the witness has already received a
pardon. he cannot longer set up his privilege. since he stands with respect to
such offence as if it had never been committed." Id., 599, citing British cases.
5 Biddle V. Perovich, 247 U.S. 480, 486 (1927).
Cf. W. Humbert, The Pardoning Power of the President (Washington:
1941), 73.
8 Biddle V. Perorich, 274 U.S. 480, 4S6 (1927).
FORD is 07V830 LIBRARY
476
ART. II-EXECUTIVE DEPARTMENT
Sec. 2-Powers and Duties of the President
Cl. 1-Pardons
Scope of the Power
The power embraces all "offences against the United States,"
except cases of impeachment. and includes the power to remit fines,
penalties, and forfeitures, except as to money covered into the Treasury
or paid an informer,1 the power to pardon absolutely or conditionally,
and the power to commute sentences, which, as seen above, is effective
without the convict's consent." It has been held. moreover, in face of
earlier English practice, that indefinite suspension of sentence by a
court of the United States is an invasion of the presidential preroga-
tive, amounting as it does to a condonation of the offense.³ It was early
assumed that the power included the power to pardon specified classes
or communities wholesale. in short, the power to amnesty, which is
usually exercised by proclamation. General amnesties were issued by
Washington in 1795, by Adams in 1800, by Madison in 1815. by
Lincoln in 1863. by Johnson in 1865, 1867. and 1868, and by the first
Roosevelt-to Aguinaldo's followers-in 1902.' Not, however, till after
the Civil War was the point adjudicated, when it was decided in favor
of presidential prerogative.5
Offenses Against the United States; Contempt of Court.-In
the first place, such offenses are not offenses against the United States.
In the second place. they are completed offenses.⁶ The President cannot
pardon by anticipation, otherwise he would be invested with the power
to dispense with the laws, his claim to which was the principal cause
of James II's forced abdication. Lastly, the term has been held to
include criminal contempts of court. Such was the holding in Ex parte
Grossman,⁸ where Chief Justice Taft, speaking for the Court, resorted
¹²³ Ops. Atty. Gen. 360, 363 (1901) ; Illinois Central Railroad V. Bosworth,
133 U.S. 92 (1800).
2 Ex parte William Wells, 18 How. (59 U.S.) 307 (1856). For the contrary
view, sec some early opinions of the Attorney General. 1 Ops. Atty. Gen. 341
(1820) ; 2 Ops. Atty. Gen. 275 (1829) : 5 Ops. Atty. Gen. GST (1795) ; cf. 4 Ops.
Atty. Gen. 458 (1845) : United States v. Wilson. 7 Pet. (32 U.S.) 150, 161 (1833).
3 Er parte United States. 242 U.S. 27 (1916). Amendment of sentence. how-
ever, within the same term of court, by shortening the term of imprisonment,
although defendant had already been committed. is a judicial act and no infringe-
ment of the pardoning power. United States v. Benz. 282 U.S. 304 (1931).
& See 1 J. Richardson. Мезвадсв and Papers of the Presidents. (Washington:
1807), 173, 293; 2 id., 543; 7 id.. 3414. 3508 S id., 3853; 14 id., 6690.
5 United States V. Klein, 13 Wall. (SO U.S.) 128. 147 (1872). Scc also United
Statcs V. Padelford. 9 Wall. (76 U.S.) 531 (1870).
. Er parte Garland. 4 Wall. (71 U.S.) 333, 3S0 (1867).
'F. Maitland, Constitutional History of England (London: 1920), 302-306;
1 Ops. Atty. Gen. 342 (1820).
8 267 U.S. 87 (1925).
I.E. - PRIOR TO Connession OF
THE ACT.
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ART. I-EXECUTIVE DEPARTMENT
477
Sec. 2-Powers and Duties of the President
CL 1-Pardons
once more to English conceptions as being authoritative in construing
this clause of the Constitution. Said he "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 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 con-
tempts were had. [Citing cases.] 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 ineflicacy 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. 39S: 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 stil main-
tained in English law." Nor was any new or special danger to be
apprehended from this view of the pardoning power. "If." said the
Chief Justice, "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?" Indeed, he queried
further, in view of the peculiarities of procedure in contempt cases,
"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 ?" 10
Effects of a Pardon: Ex parte Garland.-The great leading case
is Ex parte Garland," which was decided shortly after the Civil Wor.
By an act passed in. 1865 Congress had prescribed that before any
person should be permitted to practice in a federal court he must
take oath asserting that he had never voluntarily borne arms against
the United States. had never given aid or comfort to enemies of the
United States. and so on. Garland, who had been a Confederate sym-
pathizer and so was unable to take the oath, had however received
from President Johnson the same year "a full pardon 'for all offences
by him committed, arising from participation, direct or implied, in
Id., 110-111.
10 Id., 121, 122.
11 4 Wall. (71 U.S.) 333, 381 (1867).
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ART. II-EXECUTIVE DEPARTMENT
Sec. 2-Powers and Duties of the President
Cl. 1-Pardons
the Rebellion,' The question before the Court was whether, armed
with this pardon, Garland was entitled to practice in the federal
courts despite the act of Congress just mentioned. Said Justice Field
for a divided Court: "The inquiry arises as to the effect and operation
of a pardon, and on this point all the authorities concur. A pardon
reaches both the punishment prescribed for the offence and the guilt
of the offender: and when the pardon is full, it releases the punish-
ment and blots out of existence the guilt, SO that in the eye of the
law the offender is as innocent as if he had never committed the
offence. If granted before conviction. it prevents any of the penal-
ties and disabilities consequent upon conviction from attaching
[thereto]; if granted after conviction, it removes the penalties and
disabilities, and restores him to all his civil rights; it. makes him. as
it were, a new man, and gives him a new credit and capacity." 12
Justice Miller speaking for the minority protested that the act of
Congress involved was not penal in character. but merely laid down
an appropriate test of fitness to practice law. "The man who. by
counterfeiting, by theft. by murder. or by treason. is rendered unfit to
exercise the functions of an attorney or counsellor at law, may be
saved by the executive pardon from the penitentiary or the gallows,
but he is not thereby restored to the qualifications which are essential
to admission to the bar." 13 Justice Field's language must today be
regarded as much too sweeping in light of a decision rendered in 1914
in the case of Carlesi v. New York.¹⁺ Carlesi had been convicted
several years before of committing a federal offense. In the instant
case the prisoner was being tried for a subsequent offense committed
in New York. He was convicted as a second offender, although the
President had pardoned him for the earlier federal offense. In other
words, the fact of prior conviction by a federal court was considered
in determining the punishment for a subsequent state offense. This
conviction and sentence were upheld by the Supreme Court. While
this case involved offenses against different sovereignties, the Court
declared by way of dictum that its decision "must not be understood
as in the slightest degree intimating that a pardon would operate to
limit the power of the United States in punishing crimes against its
authority to provide for taking into consideration past offenses com-
mitted by the accused as a circumstance of aggravation even although
for such past offenses there had been a pardon granted." 15
Id., 380.
Id., 396-397.
14 233 U.S. 51 (1914).
15 Id., 59.
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ART. II-EXECUTIVE DEPARTMENT
479
Sec. 2-Powers and Duties of the President
Cl. 1-Pardons
Limits to the Efficacy of a Pardon.-But Justice Field's lati-
tudinarian view of the effect of a pardon undoubtedly still applies
ordinarily where the pardon is issued before conviction. He is also
correct in saying that a full pardon restores a convict to his "civil
rights," and this is so even though simple completion of the convict's
sentence would not have had that effect. One such right is the right
to testify in court, and in Boyd V. United States the Court held that
the disability to testify being a consequence, according to principles
of the common law, of the judgment of conviction, the pardon oblit-
erated that effect.¹⁶ But a pardon cannot "make amends for the past.
It affords no relief for what has been suffered by the offender in his
person by imprisonment. forced labor. or otherwise: it does not give
compensation for what has been done or suffered, nor does it impose
upon the government any obligation to give it. The offence being
established by judicial proceedings, that which has been done or
suffered while they were in force is presumed to have been right-
fully done and justly suffered, and no satisfaction for it can be
required. Neither does the pardon affect any rights which have
vested in others directly by the execution of the judgment for the
offence, or which have been acquired by others whilst that judgment
was in force. If. for example. by the judgment a sale of the offender's
property has been had. the purchaser will hold the property notwith-
standing the subsequent pardon. And if the proceeds of the sale have
been paid to a party to whom the law has assigned them. they cannot
be subsequently reached and recovered by the offender. The rights of
the parties have become vested. and are as complete as if they were
acquired in any other legal way. So. also, if the proceeds have been
paid into the treasury. the right to them has so far become vested in
the United States that they can only be secured to the former owner
of the property through an act of Congress. Moneys once in the treas-
ury can only be withdrawn by an apprepriation by law." 17
Congress and Amnesty
Congress cannot limit the effects of a presidential amnesty. Thus
the act of July 12. 1870, making proof of loyalty necessary to recover
property abandoned and sold by the Government during the Civil War,
notwithstanding any executive proclamation, pardon, amnesty, or
other act of condonation or oblivion, was pronounced void. Said Chief
Justice Chase for the majority: "[T]he legislature cannot change the
effect of such a pardon any more than the executive can change a law.
10 142 U.S. 450 (1892).
17 Knote V. United Statcs, 95 U.S. 149, 153-154 (1877).
FORD
GERALD
LIBRARY
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ART. I-EXECUTIVE DEPARTMENT
Sec. 2-Powers and Duties of the President
Cl. 2-Treaty-Making Power
Yet this is attempted by the provision under consideration. The Court
is required to receive special pardons as evidence of guilt and to treat
them as null and void. It is required to disregard pardons granted by
proclamation on condition, though the condition has been fulfilled, and
to deny them their legal effect. This certainly impairs the executive
authority and directs the Court to be instrumental to that end." 18 On
the other hand. Congress itself. under the necessary and proper clause,
may enact amnesty laws remitting penalties incurred under the na-
tional statutes.1
Clause 2. He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two thirds of
the Senators present concur; and he shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint Ambas-
sadors, other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States, whose Appoint-
ments are not herein otherwise provided for, and which shall be
established by Law : but the Congress may by Law vest the Appoint-
ment of such inferior Officers, as they think proper, in the Pres-
ident alone, in the Court of Law, or in the Heads of Departments.
THE TREATY-MAKING POWER
President and Senate
The plan which the Committee of Detail reported to the Federal
Convention on August 6, 1787 provided that "the Senate of the United
States shall have power to make treaties, and to appoint Ambassadors,
and Judges of the Supreme Court." Not until September 7, ten
days before the Convention's final adjournment, was the President
made a participant in these powers. The constitutional clause evi-
dently assumes that the President and Senate will be associated
throughout the entire process of making a treaty, although Jay,
is United States V. Klein, 13 Wall. (SO U.S.) 128, 143, 148 (1872).
10 The Laura, 114 U.S. 411 (1885).
1 2 M. Farrand, The Records of the Federal Convention of 1787 (New Haven:
rev. ed. 1937), 183.
, Id., 538-539.
BERALD FORD LIBRARA
THE PRESIDENT
OFFICE AND POWERS
History and Analysis of
Practice and Opinion
BY
smuel
EDWARD S. CORWIN
"
We elect a king for four years, and give him absolute power
within certain limits, which ajter all he can interpret for himself.
-Secretary of State Seward
NEW YORK UNIVERSITY PRESS
WASHINGTON SQUARE
NEW YORK
London: Humphrey Milford Oxford University Press
FORD & 078839 BRARY
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