Pet. 263, 10 L. ed. 154; Arthur v. Cumming, 91 U. S. 362, 23 L. ed. 438; Diehl v. Rodgers, 169 Pa. 316, 47 Am. St. Rep. 908, 32 Atl. 424; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Bessette v. W. B. Conkey Co. 194 U. S. 325, 48 L. ed. 997, 24 Sup. Ct. Rep. 665; Re Mullee, 7 Blatchf. 23, Fed. Cas. No. 9,911; Re Mason, 43 Fed. 510; Castner v. Pocahontas Collieries Co. 117 Fed. 184; Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co. 158 Fed. 131; Ex parte Hickey, 4 Smedes & M. 751; State ex rel. Van Orden v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115; Re Browne, 2 Colo. 553; Sharp v. State, 102 Tenn. 9, 43 L.R.A. 788, 73 Am. St. Rep. 851, 49 S. W. 752.

Messrs. Amos C. Miller and F. Bruce Johnstone, Special Assistants to the Attorney General, for respondent:

The power to punish for contempt and thereby compel respect for its decrees is an inherent power of the Federal courts. It is an essential part of judicial power.

V.

Michaelson v. United States, 266 U. S. 42, 69 L. ed. 162, 35 A.L.R. 451, 45 Sup. Ct. Rep. 18; Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242; Ex parte Terry, 128 U. S. 289, 32 L. ed. 405, 9 Sup. Ct. Rep. 77; Eilenbecker v. District Ct. 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424; Cartwright's Case, 114 Mass. 230; Interstate Commerce Commission Brimson, 154 U. S. 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125; Re Cooper, 32 Vt. 253; Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900; Watson v. Williams, 36 Miss. 331; Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 55 L. ed. 797, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492; Myers v. United States, 264 U. S. 95, 68 L. ed. 577, 44 Sup. Ct. Rep. 272.

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 principle of separation of powers upon which our governmental structure is based.

Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60; Kilbourn v. Thompson, 103 U. S. 168, 26 L. ed. 377; Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242;

Evans v. Gore, 253 U. S. 245, 64 L. ed. 887, 11 A.L.R. 519, 40 Sup. Ct. Rep. 550.

Whether the pardoning power of the President covers cases of contempt is a question open for decision by this court. It has never been decided. There was no contemporaneous construction by those, who took part in framing or adopting the Constitution. Neither opinions of Attorneys General nor acts of the Executive are determinative.

Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; The Laura (Pollock v. Bridgeport S. B. Co.) 114 U. S. 411, 29 L. ed. 147, 5 Sup. Ct. Rep. 881; 2 Ops. Atty. Gen. 329; 3 Ops. Atty. Gen. 418; 4 Ops. Atty. Gen. 317, 458; 5 Ops. Atty. Gen. 532; 10 Ops. Atty. Gen. 452; 19 Ops. Atty. Gen. 476.

Contempt of court may not be pardoned without impairing the powers and functions of the court and lessening its respect and authority.

Toledo Newspaper Co. v. United States, 247 U. S. 402, 62 L. ed. 1186, 38 Sup. Ct. Rep. 560; Craig v. Hecht, 263 U. S. 255, 68 L. ed. 293, 44 Sup. Ct. Rep. 103; Marshall v. Gordon, 243 U. S. 521, 61 L. ed. 881, L.R.A.1917F, 279, 37 Sup. Ct. Rep. 448, Ann. Cas. 1918B, 371; Eilenbecker v. District Ct. 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424; Ex parte Hickey, 4 Smedes & M. 751; State ex rel. Van Orden v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115; Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S. W. 515; Re Nevitt, 54 C. C. A. 622, 117 Fed. 448; People ex rel. Brundage v. Peters, 305 Ill. 223, 26 A.L.R. 16, 137 N. E. 118; State ex rel. Rodd v. Verage, 177 Wis. 295, 23 A.L.R. 491, 187 N. W. 830.

Messrs. Harlan F. Stone, Attorney General, James M. Beck, Solicitor General, and Robert P. Reeder, Special Assistant to the Attorney General, for the United States, as amici

curiæ:

Criminal contempts are offenses against the United States within the meaning of the constitutional provision which gives to the President power to grant pardons for offenses against the United States.

Michaelson v. United States, 266 U. S. 42, 69 L. ed. 162, 35 A.L.R. 451, 45 Sup. Ct. Rep. 18; Toledo Newspaper Co. v. United States, 247 U. S.

onment in the Chicago House of Correction for one year and to pay a fine of $1,000 to the United States, and costs. The decree was affirmed by the circuit court of appeals. 280 Fed. 683. In December, 1923, the President issued a pardon in which he commuted the sentence of Grossman to the fine of $1,000, on condition that the fine be paid. The pardon was accepted, the fine was paid, and the defendant was released. In May, 1924, however, the district court committed Grossman to the Chicago House of Correction to serve the sentence, notwithstanding the pardon (1 F. (2d) 941). The only question raised by the pleadings herein is that of the power of the President to grant the pardon.

Special counsel, employed by the Department of Justice, appear for the defendant to uphold the legality of the detention. The Attorney General of the United States, as amicus curiæ, maintains the validity and effectiveness of the President's action. The petitioner by his counsel urges his discharge from imprisonment.

Article 2, § 2, clause 1, 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 offenses against the United States, except in cases of impeachment."

The argument for the defendant is that the President's power extends only to offenses against the United States, and a contempt of court is not such an offense; that offenses against the United States are not common-law offenses, but can only be created by legislative act; that the President's pardoning power is more limited than that of the King of England at common law, which was a broad prerogative and included contempts against his courts chiefly because the judges thereof were his agents and acted in his name; that the context of the Constitution shows that the word "offenses" is used in that instrument only to include crimes and mis

demeanors 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.

Constitutional law-construc

common law.

The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions tion-effect of 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 Convention of the thirteen states, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.

In a case presenting the question whether a pardon should be pleaded in bar to be effective, Chief Justice Marshall said of the power of pardon (United States v. Wilson, 7 Pet. 150, 160, 8 L. ed. 640, 643):

"As this power had been exercised from time immemorial by the Executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it."

Week. Rep. 374, 17 Cox, C. C. 107 -C. A.; Lord Chancellor Selborne in the House of Lords, 276 Hansard, 1714, commenting on Green's Case, L. R. 6 App. Cas. 657, 51 L. J. Q. B. N. S. 25, 45 L. T. N. S. 353, 30 Week. Rep. 218-H. L.

In our own law the same distinction clearly appears. Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 55 L. ed. 797, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492; Doyle v. London Guarantee & Acci. Co. 204 U. S. 599, 607, 51 L. ed. 641, 644, 27 Sup. Ct. Rep. 313; Bessette v. W. B. Conkey Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665; Alexander v. United States, 201 U. S. 117, 50 L. ed. 686, 26 Sup. Ct. Rep. 356; Union Tool Co. v. Wilson, 259 U. S. 107, 109, 66 L. ed. 848, 850, 42 Sup. Ct. Rep. 427. In the Gompers Case this court points out that it is not the fact of punishment, but rather its character and purpose, that makes the difference between the two kinds of contempts. For civil contempts, the punishment is remedial and for the benefit of the complainant, and a pardon cannot stop it. For criminal contempts, the sentence is punitive in the public interest to vindicate the authority of the court and to deter other like derelictions.

With this authoritative background of the common law and English history before the American Revolution to show that criminal contempts were within the understood scope of the pardoning power of the Executive, we come now to the history of the clause in the Constitutional Convention of 1787. The proceedings of the Convention from June 19, 1787, to July 23, were by resolution referred to a committee on detail for report of the Constitution (2 Farrand's Records of Constitutional Convention, 128, 129) and contained the following (2 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 (2

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. 4 Bl. Com. 399. On August 25th (2 Farrand, 411), the words "except in cases of impeachment" were added after "pardons" and the succeeding words were stricken out. On Saturday, September 8th (2 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 (2 Farrand, 575): “He shall have power to grant reprieves and pardons except in cases of impeachment." The committee on style reported this clause as it now is-"and he shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment." There seems to have been no discussion over the substance of the clause except that a motion to except cases of treason was referred to the committee on style September 10th (2 Farrand, 564), was not approved by the committee, and after discussion was defeated in the Convention September 15th (2 Farrand, 626, 627).

We have given the history of the clause to show that the words "for offenses against the United States" were inserted by a committee on style, presumably to make clear that the pardon of the President was to operate upon offenses against the United States as distinguished from offenses against the states. It cannot be supposed that the committee on revision, by adding these words, or the Convention, by accepting them, intended sub silentio to narrow the scope of a pardon from one at common law or to confer any different power in this regard on our Executive from that which the members of the Convention had seen exercised before the Revolution.

Nor is there any substance in the