(267 U. S. 87, 69 L. ed. (Adv. 377), 45 Sup. Ct. Rep. 332.) 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 to-day. The extent of the King's pardon was clearly circumscribed by law and the British Constitution, as the cases cited above show. The framers of our Constitution had in mind no necessity for curtailing this feature of the King's prerogative in transplanting it into the American governmental structures, save by excepting cases of impeachment; and even in that regard, as already pointed out, the common law forbade the pleading a pardon in bar to an impeachment. The suggestion that the President's power of pardon should be regarded as necessarily less than that of the King was pressed upon this court and was agreed to by Mr. Justice McLean, one of the dissenting judges, in Ex parte Wells, 18 How. 307, 321, 15 L. ed. 421, 428, but it did not prevail with the majority. It is said that "offenses against the United States," in the pardon clause, can include only crimes and misdemeanors defined and denounced by congressional act, because of the decision of this court in United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259. This was a criminal case certified from the district court upon a demurrer to an indictment for criminal libel at common law. The court sustained the demurrer, on the ground that indictments in Federal courts could only be brought for statutory offenses. The reasoning of the court was that the inferior courts of the United States must be created by Congress, that their jurisdiction, though limited by the Constitution, was in its nature very indefinite, applicable to a great variety of subjects, varying in every state in the Union, so that the courts could not assume to exercise it without legislative definition. Justices Wilson and Paterson were members of the Constitutional Convention, and the former was one of the five on the committee on style which introduced the words "offenses against the United States" into the pardon clause. We can hardly assume under these circumstances that the words of the pardon clause were then used to include only statutory offenses against the United States and to exclude therefrom common-law offenses in the nature of contempts against the dignity and authority of United States courts, merely because this court, more than twenty years later, held that Federal courts could only indict for statutory crimes, though they might punish for common-law contempts. Nothing in the ordinary meaning of the words "offenses against the United States" excludes criminal contempts. That which violates the dignity and authority of Federal courts, such as an intentional effort to defeat their decrees justifying punishment, violates a law of the United States (Re Neagle, 135 U. S. 1, 59, et seq., 34 L. ed. 55, 69, 10 Sup. Ct. Rep. 658), and so must be an offense against the United States. Moreover, this court has held that the general statute of limitation which forbids prosecutions "for any offense unless instituted within three years next after such offense shall have been committed" applies to criminal contempts. Gompers v. United States, 233 U. S. 604, 58 L. ed. 1115, 34 Sup. Ct. Rep. 693, Ann. Cas. 1915D, 1044. In that case this court said (p. 610): "It is urged in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by jury, etc., 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 trans planted 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, 41 L. ed. 715, 717, 718, 17 Sup. Ct. Rep. 326. It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury, as it has been gradually worked out and fought out, has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of "crimes" as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure (3 Transactions of the Royal Historical Society, N. S. p. 147 (1885)), and that, at least in England, it seems that they still may be and preferably are tried in that way. See 7 Laws of England (Halsbury) 280, sub v. Contempt of Court (604); Re Clements, 46 L. J. Ch. N. S. pp. 375, 383, 36 L. T. N. S. 332; Re Macleod, 6 Jur. 461; Schreiber v. Lateward, 2 Dick. 592, 21 Eng. Reprint, 401; Wellesley's Case, 2 Russ. & M. 639, 667, 39 Eng. Reprint, 538, 548; Re Pollard, L. R. 2 P. C. 106, 120, 5 Moore P. C. C. N. S. 111, 16 Eng. Reprint, 457; Ex parte Kearney, 7 Wheat. 38, 43, 5 L. ed. 391, 392; Bessette v. W. B. Conkey Co. 194 U. S. 324, 328, 331, 332, 48 L. ed. 997, 1002-1004, 24 Sup. Ct. Rep. 665; Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 441, 55 L. ed. 797, 805, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492." The recent case of Michaelson v. United States fully bears out the same view. 266 U. S. 42, 66, 67, 69 L. ed. 162, 35 A.L.R. 451, 45 Sup. Ct. Rep. 18. (267 U. S. 87, 69 L. ed. (Adv. 377), 45 Sup. Ct. Rep. 332.) 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 "offenses" is only used twice in the original Constitution-once in the pardon clause, and once in article 1, § 8, among the powers of Congress, "to define and punish piracies and felonies committed on the high seas and offenses against the law of nations." In the amendments, "offense" occurs but once, and that in the 5th 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 "offenses" in the pardon clause. The argument is that the word "offenses" is used in the Constitution interchangeably with crimes and criminal prosecutions. But, as has been pointed out in Schick v. United States, 195 U. S. 65, 49 L. ed. 99, 24 Sup. Ct. Rep. 826, 1 Ann. Cas. 585, the term "offenses" is used in the Constitution in a more comprehensive sense than are the terms "crimes" and "criminal prosecutions." In Myers v. United States, 264 U. S. 95, 104, 105, 68 L. ed. 577, 579, 580, 44 Sup. Ct. Rep. 272, 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 6th Amendment, or common understanding." Bessette v. W. B. Conkey Co. 194 U. S. 324, 326, 48 L. ed. 997, 1001, 24 Sup. Ct. Rep. 665. Contempt proceedings are sui generfs because they are not hedged about with all the safeguards provided in the Bill of Rights for protecting one accused of ordinary crime from the danger of unjust conviction. This is due, of course, to the fact that for years before the American Constitution, courts had been held to be inherently empowered to protect themselves and the function they perform by summary proceeding without a jury to punish disobedience of their orders and disturbance of their hearings. So it is clear to us that the language of the 5th and 6th Amendments and of other cited parts of the Constitution is not of significance in determining the scope of pardons of "offenses against the United States" in article 2, § 2, clause 1, of the enumerated powers of the President. We think the arguments drawn from the common law, from the power of the King under the British Constitution, which plainly was the prototype of this clause, from the legislative history of the clause in the Convention, and from the ordinary meaning of its words, are much more relevant and convincing. Moreover, criminal contempts of a Federal court have been pardoned for eighty-five years. In that time the power has been exercised twenty-seven times. In 1830, Attorney General Berrien, in an opinion on a state of fact which did not involve the pardon of a contempt, expressed merely in passing the view that the pardoning power did not include impeachments or contempts, using Rawle's general words from his work on the Constitution. Examination shows that the author's exception of contempts had reference only to contempts of a House of Congress. In 1841, Attorney General Gilpin approved the pardon of a contempt on the ground that the principles of the common law embraced such a case and this court had held that we should follow them as to pardons. 3 Ops. Atty. Gen. 622. Attorney General Nelson in 1844 (4 Ops. Atty. Gen. 317), Attorney General Mason in 1845 (4 Ops. Atty. Gen. 458), and Attorney General Miller in 1890 (19 Ops. Atty. Gen. 476), rendered similar opinions. Similar views were expressed, though the opinions were not reported, by Attorney General Knox in 1901 and by Attorney General Daugherty in 1923. Such long practice under the pardoning power and acquiescence in it strongly sustain the construction it is based on. Stuart v. Laird, 1 Cranch, 299, 308, 2 L. ed. 115, 118; Cooley v. Port Wardens, 12 How. 299, 315, 13 L. ed. 996, 1003; Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57, 28 L. ed. 349, 351, 4 Sup. Ct. Rep. 279; The Laura (Pollock v. Bridgeport S. B. Co.) 114 U. S. 411, 416, 29 L. ed. 147, 148, 5 Sup. Ct. Rep. 881. 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 F. (2d) 941. The circuit court of appeals of the eighth circuit sustained it in a discussion, though not necessary to the case, in Re Nevitt, 54 C. C. A. 622, 117 Fed. 448. The supreme court of Wisconsin by a majority upheld it in State ex rel. Rodd v. Vergage, 177 Wis. 295, 23 A.L.R. 491, 187 N. W. 830, in remarks which were also obiter. Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S. W. 515, is the only direct authority, and that deals with a clause a little differently worded. The opposite conclusion was reached in Re Mullee, 7 Blatchf. 23, Fed. Cas. No. 9,911; Ex parte Hickey, 4 Smedes & M. 751; State ex rel. Van Orden v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115; Sharp v. State, 102 Tenn. 9, 43 L.R.A. 788, 73 Am. St. Rep. 51, 49 S. W. 752; State v. Magee Pub. Co. 29 N. M., post, 142, 224 Pac. 1028. The Federal Constitution nowhere expressly declares that the three branches of the government shall be kept separate and independent. All legislative powers are vested in a Congress. The executive power is vested in a President. The judicial power is vested in one Supreme Court and in such inferior courts as Congress may from time to time establish. The judges are given life tenure and a compensation that may not be diminished during their continuance in office, with the evident purpose of securing them and their courts an independence of Congress and the Executive. Complete independence and separation between the three branches, however, are not attained, or intended, as other provisions of the Constitution and the normal operation of government under it easily demonstrated. By affirmative action through the veto power, the Executive and one more than one third of either House may defeat all legislation. One half of the House and two thirds of the Senate may impeach and remove the members of the Judiciary. The Executive can reprieve or pardon all offenses after their commission, either before trial, during trial, or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress. Ex parte Garland, 4 Wall. 333, 380, 18 L. ed. 366, 370. Negatively one House of Congress can withhold all appropriations and stop the operations of government. The Senate can hold up all appointments, confirmation of which either the Constitution or a statute requires, and thus deprive the President of the necessary agents with which he is to take care that the laws be faithfully executed. These are some instances of positive and negative restraints possibly available under the Constitution to each branch of the government in defeat of the action of the other. They show that the independence of each of the other is qualified and is so subject to exception as not to constitute a broadly positive injunction or a necessarily controlling rule of construction. The fact is that the Judiciary, quite as much as Congress and the Executive, is dependent on the co-operation of the other two, that government may go on. Indeed, while the Constitution has made the Judiciary as independent of the other branches as is practicable, it is, as often remarked, the weakest of the three. It must look for a continuity of necessary co-operation, in the possible reluctance of (267 U. S. 87, 69 L. ed. (Adv. 377), 45 Sup. Ct. Rep. 332.) either of the other branches, to the force of public opinion. Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check intrusted to the Executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery. A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor's right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our 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. The power of a court to protect itself and its usefulness by punishing contemners is, of course, necessary, but it is one exercised without the restraining influence of a jury and without many of the guaranties. which the Bill of Rights offers to protect the individual against unjust conviction. Is it unreasonable to provide for the possibility that the personal element may sometimes enter into a summary judgment pronounced by a judge who thinks his authority is flouted or denied? May it not be fairly said that in order to avoid possible mistake, undue prejudice, or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial? The pardoning by the President of criminal contempts has been practised more than three quarters of a century, and no abuses during all that time developed sufficiently to invoke a test in the Federal courts of its validity. It goes without saying that nowhere is there a more earnest will to maintain the independence of Federal courts and the preservation of every legitimate safeguard of their effectiveness afforded by the Constitution than in this court. But the qualified independence which they fortunately enjoy is not likely to be permanently strengthened by ignoring precedent and practice and minimizing the importance of the co-ordinating checks and balances of the Constitution. |