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shall have full discretionary power to pardon or remit, in whole, or in part, either one of the two kinds, without, in any manner, impairing the legal validity of the other kind, or of any portion of either kind, not pardoned or remitted.2 The President may exercise the pardoning power by way of a proclamation of amnesty, applicable to particular classes of persons. This type of clemency is illustrated by the proclamations issued after the Civil War. There is little difference between amnesty and pardon, except that the former is rarely exercised in favor of single individuals, but usually in behalf of a class of persons who are subject to trial but have not yet been convicted. Although the President's pardoning power "is not subject to legislative control, nevertheless Congress has power to pass acts of general amnesty."

There is no limitation upon the time within which the power may be exercised. It has been stated that it may be exercised at any time after the commission of the offense, "either before legal proceedings are taken, or during their pendency, or after conviction and judgment." However, it

has been thought "unwise and inexpedient, as a general rule, to interpose the pardoning power in anticipation of trial and condemnation," and consequently, the power has generally been exercised after conviction."

Rev. Stat. § 5330 (1875), 18 U. S. C. § 568 (1934).

See, e. g., 15 Stat. 699 (1867); 15 Stat. 711 (1868). These proclamations have the force of public law and need not be specially pleaded. Jenkins v. Collard, 145 U. S. 546 (1892).

Brown v. Walker, 161 U. S. 601 (1896).

3 Ex parte Garland, 4 Wall 333, 380 (U. S. 1867). See United States v. Klein, 13 Wall. 128 (U. S. 1871), holding void a statute making a pardon inadmissible in evidence to forward a claim for confiscated property. Cf. Hart v. United States, 118 U. S. 62 (1886).

• Brown v. Walker, 161 U. S. 601 (1896).

"Es parte Garland, 4 Wall. 333, 380 (U. S. 1867).

6 Opinions Att'y Gen. 20, 21 (1853). In Burdick v. United States, 236 U. S. 79 (1915), it was contended that a full and unconditional pardon could not be given for an offense not established. But the court specifically declined to decide the point.

A perusal of the Report of the Pardon Attorney, incorporated in the Annual Report of the Attorney General, indicates that such is the case. For example, in 1935-36, out of 154 pardons granted, none was granted before conviction. Indeed, 152 of the 154 were granted only after completion of sentence, for the purpose of restoring civil rights. In the same year sentences were commuted in 28 cases and conditionally commuted in 155. Rep. Att'y Gen. (1936) 153.

Pardon for contempt of court.-With the exception of cases of impeachment, the applicability of the pardoning power to any particular act depends upon whether it falls within the category of "offenses against the United States." Once it is decided that an act is such an offense, pure logic would dictate that the pardoning power extends to it.10 There is no difficulty in applying this reasoning to the various crimes defined by statute. But a source of difficulty has been the status of contempts of court with respect to the pardoning power.

There seems to be no doubt that, where in a civil suit the court commits a person for contempt as a coercive measureuntil the order or decree of the court is obeyed, such sentence is not subject to the pardoning power.11 But where the contemnor is fined or imprisoned as punishment and is not required to perform or desist from doing any act affecting the rights of parties to a civil suit, he may be the recipient of executive clemency.12

Pardon for legislative contempt.-No Federal case has been found which upholds or denies the application of the pardoning power to legislative contempts. Story expressed the opinion that the executive could not pardon persons committed for contempt of a branch of the legislature on the ground that otherwise the legislature would be, in effect, dependent upon the President for the proper exercise of its legislative duties.13 But refusing to answer questions pertinent to an inquiry being conducted by either House of

10 However, it has been suggested that a distinction be made between offenses against the United States generally and offenses against the United States within the meaning of the constitutional clause granting the pardoning power to the President. See Lardner, Executive Pardon far Contempt of Court (1930) 2 Rocky Mt. L. Rev. 137, 146.

11 See Morris, Some Phases of the Pardoning Power (1926) 12 A. B. A. J. 183, 186. Such orders are civil and remedial in nature, being in aid of parties to a civil suit and not in execution of the criminal laws. In re Nevitt, 117 Fed. 448 (C. C. A. 8th, 1902).

12 Ex parte Grossman, 267 U. S. 87 (1925); In re Mullee, 17 Fed. Cas. No. 9,911 (C. C. S. D. N. Y. 1869); 3 Opinions Att'y Gen. 622 (1841); 4 id. 458 (1845). See generally, Morris, supra. But see Note (1903) 16 Harv. L. Rev.

291.

13 Story, Constitution (4th ed. 1873) § 1503. "The Constitution is silent in respect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts. The latter arises by implication; and to make it effectual, the former is excluded by implication." Ibid. But like reasoning applies to the "inherent" power of the courts to punish for direct contempt.

Congress has ben made a Federal offense; 1 and so may perhaps be said to be an "offense against the United States" and pardonable. In 1938, President Roosevelt pardoned Dr. Francis Townsend, who had been found guilty of contempt of a congressional investigating committee. No question seems to have been raised as to the power of the President to grant such a pardon.

Necessity for acceptance.-A pardon is sometimes said to be like a deed, necessitating delivery and acceptance before it has any validity.15 Accepting this premise, it is asserted that a tendered pardon may be rejected, "and if it be rejected, we have discovered no power in a court to force it on him." 16 Presumably, then, a person sentenced to death could insist upon his execution despite the proffer of a full and complete pardon. No Federal case has so decided; it would seem that the public welfare, not the prisoner's consent, would determine what should be done in such a situation.17

Conditional pardon.-In Ex parte Wells 18 it was decided that the President could grant conditional pardons. The court asserted that this power "is not one of inference at all, but one conferred in terms," 19 for the reason that the Constitution extended the power of the President to all kinds of pardon then known to the law, and conditional pardon was a distinct type used at that time.

The conditions may be either precedent or subsequent, and are binding if they are not illegal, immoral, or impossible of performance. A person who has been granted

14 Rev. Stat. § 102 (1875), 2 U. S. C. §192 (1934). But this statute does not impair the power of either House to punish for contempt. Jurney v. McCracken, 294 U. S. 125 (1935).

15 Delivery to a Federal marshal, and not the keeper of the prison, is not effective to prevent a subsequent revocation. In re De Puy, 7 Fed. Cas. No. 3,814 (D. C. S. D. N. Y. 1869). See United States v. Wilson, 7 Peters 94 (U. S. 1833); Burdick v. United States, 236 U. S. 79 (1915). But the basic premise that deeds must be accepted to be valid has been doubted. See 1 Williston, Contracts (rev. ed. 1936) § 213.

1 See United States v. Wilson, 7 Peters 94 at 102 (U. S. 1833). Cf. Biddle v. Perovich, 274 U. S. 480 (1927).

""Supposing that Perovich did not accept the change (from hanging to life imprisonment), he could not have got himself hanged against the Executive order." Biddle v. Perovich, 274 U. S. 480, 487 (1927).

18 How. 307 (U. S. 1855).

19 Id. at 315.

a pardon on condition that he pay a fine and costs cannot obtain his release as a poor convict after serving the statutory period prescribed for inability to pay a fine; the condition of the pardon must be strictly performed.20 A condition requiring deportation is legal and for failure to comply therewith the pardon may be revoked.21

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Commutation.-A commutation is the substitution of a lesser for a greater punishment; it is "merely a withdrawal of a restraining jurisdiction, * and it is not within the ability of the prisoner to compel the sovereign to continue that restraint." 22 Thus the question of the necessity of acceptance which exists as to pardons does not exist as to commutation. In addition to this difference, a commutation by definition does not purport to wipe out guilt or restore civil rights.23 Nevertheless, both in theory and in practice, pardon and commutation have much in common and the distinction between them is not always easy to make.24 The difficulty is increased by the practice of granting conditional commutations. A lower Federal court has intimated that for a conditional commutation to be effective. the person must accept the conditions.25

Remission of fines and forfeitures.-The power to pardon includes the power to remit fines and forfeitures.26 Nice questions have arisen in the case of vessels condemned as prizes of war or forfeited for infractions of particular statutes governing navigation. Thus in 1847 the Attorney General ruled that the President could remit the forfeiture of a vessel condemned for violating the Slave Trade Act,

20 In re Ruhl, 20 Fed. Cas. No. 12,124 (D. C. Nev. 1878).

21 Kavalin v. White, 44 F. (2d) 49 (C. C. A. 10th, 1930).

22 Chapman v. Scott, 10 F. (2d) 156, 160 (D. C. Conn. 1925), cert. denied, 270 U. S. 657 (1926).

23 Ibid.

Persons whose sentences have been conditionally commuted are still "convicts" and may be deported, United States ex rel. Brazier v. Commissioner, 5 F. (2d) 162 (C. C. A. 2d, 1924).

24 In Ex parte Wells, 18 How. 307 (U. S. 1855), a "conditional pardon" was granted on the condition that the prisoner accept and serve a life sentence. In Biddle v. Perovich, 274 U. S. 480 (1927), the same action was taken but was denominated "commutation."

25 Ex parts Weathers, 33 F. (2d) 294 (D. C. Fla. 1929).

26 United States v. Wilson, 7 Peters 94 (U. S. 1833); Ex parte Wells, 18 How. 307 (U. S. 1855). Power to remit penalties may be granted to executive officers without invading the President's power. The Laura, 114 U. S. 411 (1885).

on the theory that the proceeding was in all essentials a prosecution for a criminal offense.27 So also it has been ruled that the forfeiture of a ship condemned as a prize of war could be remitted, because running a blockade was considered an offense against the United States.28

The President cannot remit the forfeiture of a bail bond or a judgment against a surety on a recognizance; the surety's liability is contractual and constitutes a civil obligation.20

There is a split of authority on the question whether that part of a forfeiture due an informer may be remitted by the President. There is no doubt that after the informer has been paid his share, no remission can be had; 30 the difficulty arises when payment has not occurred but judgment in favor of the informer has been entered. One view is that after judgment the informer has a vested right to his share; 1 the contrary view, on the other hand, holds that the informer's right is subject to being annulled, until payment, by a remission and that to hold otherwise would render the statute granting the share to the informer unconstitutional as a legislative infringement of the pardoning power. 32

Revocation of pardon.-In the case where the person receives a conditional pardon or commutation and later violates the conditions, recommitment may be had for the balance of the original sentence. To the argument that partial punishment plus recommitment upon condition broken will amount to a severer and different sentence, it is answered that the convict has consented to this type of treatment.33

4 Opinions Att'y Gen. 573 (1847); cf. 11 id. 122 (1864).

23 Id. 360 (1901). Contra: 10 id. 452 (1863).

4 Id. 144 (1843); 11 id. 124 (1864). In the latter opinion it was indicated that had the criminal been pardoned, that fact probably would have constituted a good plea in bar of the action on the recognizance.

Knote v. United States, 95 U. S. 149 (1877).

United States v. Harris, 26 Fed. Cas. No. 15.312 (D. C. Ky. 1866). See United States v. Lancaster, 26 Fed. Cas. No. 15,557 (C. C. E. D. Pa. 1821). a United States v. Thomasson, 28 Fed. Cas. No. 16,479 (D. C. Ind. 1866). See 5 Opinions Att'y Gen. 579 (1852).

33 Ex parte Wells, 18 How. 307, 315 (U. S. 1855); Ex parte Weathers, 33 F. (2d) 294 (D. C. Fla. 1929). It is rather difficult to see how this consent operators; if the interrupted sentence is not in fact a different punishment, the prisoner has consented to nothing; if it is a different and severer punishment, it would seem that the doctrine of separation of powers has been violated.

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