Congress has ben made a Federal offense; 14 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." 10 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.

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

17 "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

* *

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; 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.82

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.3

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

28 23 Id. 360 (1901). Contra: 10 id. 452 (1863).

33

24 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).

21 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). United States v. Thomasson, 28 Fed. Cas. No. 16,479 (D. C. Ind. 1866). See 5 Opinions Att'y Gen. 579 (1852).

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.

No decision has fixed any limits upon the time within which a conditional release may be revoked by the Executive. Frequently the conditional commutation states that the release is upon conditions "similar to parole.” 34 But since both conditional pardons and commutations are a part of the Executive prerogative, presumably the power of revocation remains outstanding as long as the President may desire. Of course, the grant may stipulate the duration of the conditions, in which case no question would arise after the expiration of that period.

There are no cases on the question whether a hearing must be given before a conditional pardon is revoked for alleged breach.35 It would seem that a hearing of some kind should be given. However, a revocation without hearing might be supported upon the ground that the grant provided for such procedure or that the power to grant conditional release impliedly reserves uncontrolled power to revoke.36

Effect of pardon.-It is said that a pardon "reaches both the punishment prescribed for the offense and the guilt of the offender; and where the pardon is full, it releases the punishment 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." 37 This expression is not literally true. Proof of the conviction may be used to discredit the recipient of a pardon as a witness; 38 and in some jurisdictions renders him incompetent. It is manifest that when such consequences follow, a full pardon does not make the person "as innocent as if he had never committed the offence."

39

See detail of pardons granted, Rep. Att'y Gen. (1932) 371 et seq. Parole is frequently not available in these cases, so that there is no necessary conflict with the parole statute.

35 In Ex parte Weathers, 33 F. (2d) 294 (D. C. Fla. 1929), the court dismissed as without merit the contention that a hearing had not been granted. 36 See Note (1908) 67 Cent. L. J. 188, for suggestions as to procedure on recommitment for breach.

37 Ex parte Garland, 4 Wall. 333, 380 (U. S. 1867).

38 Vedin v. McConnell, 22 F. (2d) 753 (C. C. A. 9th, 1927).

39 See Williston, Does a Pardon Blot Out Guilt? (1915) 28 Harv. L. Rev. 647. In the Federal courts, the pardoned witness is competent. "The disability to testify being a consequence, according to the principles of the common law, of the judgment of conviction, the pardon obliterated that effect." Boyd v. United States, 142 U. S. 450, 453 (1892).

40

A full pardon restores property which has been confiscated by reason of the offense pardoned, provided the property has not become vested in third persons or the proceeds covered into the treasury. "The property and the proceeds are not considered as so absolutely vesting in third parties or in the United States as to be unaffected by the pardon until they have passed out of the jurisdiction of the officer or tribunal." 41 Likewise a pardon restores rights and powers lost or suspended by the conviction.42

GOOD-TIME DEDUCTIONS

History. The first statute providing for the reduction of sentences of Federal prisoners because of good conduct was enacted in 1867. This authorized a deduction of 1 month in each year from the term of sentence of Federal prisoners confined in State jails or penitentiaries, upon the certificate of the warden or keeper with the approval of the Secretary of the Interior. In 1870 the application of this statute was limited to prisoners in institutions where no good time credits were allowed; in all other cases the deductions applicable to State prisoners were to be applied to Federal prisoners.2 The schedule of credits was changed in 1875 so that convicts confined in any State or territorial prison or penitentiary where no system of good conduct deductions existed might earn a credit of 5 days "in each and every calendar month during which no charge of misconduct shall have been sustained * *993 When provision was made for the erection of United States prisons, the Attorney General was authorized to establish rules for reductions of sentences because of good behavior of prisoners confined

40 Osborn v. United States, 91 U. S. 474 (1875).

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

Illinois Central R. R. Co. v. Bosworth, 133 U. S. 92 (1890) (power to transfer property); 36 Opinions Att'y Gen. 193 (1930) (right to receive veterans' benefits).

114 Stat. 424 (1867). The Department of Justice was not created until 1870. 16 Stat. 162 (1870). Nor was provision made for United States prisons until 1891. 26 Stat. 840 (1891). In 1872 the duties of the Secretary of the Interior relating to the imprisonment or discharge of Federal prisoners were transferred to the Department of Justice, so that the approval of good conduct deductions now rests with the Attorney General. 17 Stat. 35 (1872). 216 Stat. 151 (1870).

18 Stat. 479 (1875).

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