U.S. Supreme Court Ex Parte Grossman, 267 U.S.
87 (1925) Ex Parte Grossman No. 24, Original Argued December 1,
1924 Decided March 2, 1925 267 U.S.
87 ERROR TO THE DISTRICT COURT OF THE
UNITED STATES FOR THE NORTHERN DISTRICT OF
ILLINOIS Syllabus 1. A criminal contempt, committed by disobedience of an
injunction issued by the District Court to abate a nuisance in
pursuance of Page 267 U. S. 88 the Prohibition Law, is an "offence against the United States,"
within the meaning of Article II, 2, Cl. 1 of the Constitution, and
pardonable by the President thereunder. P. 267 U. S.
108 .

															2. Before our Revolution, the King of England had always
exercised the power to pardon criminal contempts, the pardon being
efficatious insofar as punishment was imposed in the public
interest, to vindicate the authority of the King and Court
(criminal contempt), but not insofar as imposed to secure the
rights of a suitor (civil contempt). P. 267 U. S.
110 .

															3. The like distinction between criminal and civil contempts is
clearly made in our law. P. 267 U. S.
111 .

															4. The history of the pardon clause in the Constitutional
Convention, cited to show that the words "offences against
the United States" therein were intended, presumably, to
distinguish between offences against the General Government and
offences against the States, and not to narrow the scope of a
pardon as known in the common law. P. 267 U. S.
112 .

															5. There is no substantial difference in this matter between the
executive power of pardon in our Government and the King's
prerogative. P. 267 U. S.
113 .

															6. Nor does the ruling of this Court in United
States v. Hudson , 7 Cranch 32, limiting the
exercise of ordinary federal criminal jurisdiction to crimes
defined by Congress, afford reason for confining "offences against
the United States," in the pardon clause to statutory crimes and
misdemeanors. P. 267 U. S.
114 .

															7. Construction of "offences against the United States" in the
pardon clause as including criminal contempts accords with the
ordinary meaning of the words, and is not inconsistent with other
parts of the Constitution where the term "offence" and the narrower
terms "crimes" and "criminal prosecutions" appear. Art. I, 8;
Amendments V and VI. P. 267 U. S.
115 .

															8. The power of the President to pardon criminal contempts is
sustained by long practice and acquiescence. P. 267 U. S.
118 .

															9. The contention that to admit the power of the President to
pardon criminal contempts (not to interfere with coercive measures
of the courts to enforce the rights of suitors) would tend to
destroy the independence of the Judiciary and would violate the
principle of separation of the three departments of the Government
is considered and rejected. P. 267 U. S.
119 .

															Rule in habeas corpus made absolute, and prisoner
discharged.

															Habeas corpus, original in this Court, to try the
constitutionality of petitioner's confinement notwithstanding a Page 267 U. S. 89 pardon granted by the President. The petitioner was found guilty
by the District Court of having disobeyed a temporary injunction,
issued under the Prohibition Act, forbidding illicit traffic in
liquors on certain premises. He was sentenced by the District Court
to pay a fine and to imprisonment for one year in the Chicago House
of Correcting -- a judgment which was affirmed by the Circuit Court
of Appeals. 280 Fed. 683. The President issued a pardon commuting
the sentence to the fine upon condition that the fine were paid;
which was done. Having been thereupon released from custody, the
petitioner was again committed by the District Court, upon the
ground that the pardon was ineffectual, 1 Fed.2d 941. He then
sought this writ of habeas corpus, directed to Graham, the
Superintendent of the House of Correction. Page 267 U. S. 107 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

															This is an original petition in this Court for a writ of habeas
corpus by Philip Grossman against Ritchie V. Graham, Superintendent
of the Chicago House of Correction, Cook County, Illinois. The
respondent has answered the rule to show cause. The facts are not
in dispute.

															On November 24, 1920, the United States filed a bill in equity
against Philip Grossman in the District Court of the United States
for the Northern District of Illinois, under Section 22 of the
National Prohibition Act (Ch. 85, 41 Stat. 305, 314), averring that
Grossman was maintaining a nuisance at his place of business in
Chicago by sales of liquor in violation of the Act and asking an
injunction to abate the same. Two days later, the District Judge
granted a temporary order. January 11, 1921, an information was
filed against Grossman, charging that, after the restraining order
had been served on him, he had sold to several persons liquor to be
drunk on his premises. He was arrested, tried, found guilty of
contempt and sentenced to imprisonment 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
Fed.2d 941. The only Page 267 U. S. 108 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 respondent to uphold the legality of the detention. The
Attorney General of the United States, as amicus curiae, maintains the validity and effectiveness of the President's action.
The petitioner, by his counsel, urges his discharge from
imprisonment.

															Article II, Section 2, clause one, 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 Offences against the United States, except in Cases of
Impeachment."

															The argument for the respondent 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 "offences"
is used in that instrument only to include crimes and misdemeanors
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.

															The language of the Constitution cannot be interpreted safely
except by reference to the common law and to Page 267 U. S. 109 British institutions 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 Conventions 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 Peters, 150, 32 U. S.
160 ):

															"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."

															In Ex parte William
Wells , 18 Howard, 307, 59 U. S. 311 ,
the question was whether the President, under his power to pardon
could commute a death sentence to life imprisonment by granting a
pardon of the capital punishment on condition that the convict be
imprisoned during his natural life. This Court, speaking through
Mr. Justice Wayne, after quoting the above language of the Chief
Justice, said:

															"We still think so, and that the language used in the
Constitution, conferring the power to grant reprieves and pardons,
must be construed with reference to its meaning Page 267 U. S. 110 at the time of its adoption. At the time of our separation from
Great Britain, that power had been exercised by the King, as the
chief executive. Prior to the Revolution, the Colonies, being in
effect under the laws of England, were accustomed to the exercise
of it in the various forms, as they may be found in the English law
books. They were, of course, to be applied as occasions occurred,
and they constituted a part of the jurisprudence of Anglo-America.
At the time of the adoption of the Constitution, American statesmen
were conversant with the laws of England and familiar with the
prerogatives exercised by the crown. Hence, when the words to grant
pardons were used in the Constitution, they conveyed to the mind
the authority as exercised by the English crown, or by its
representatives in the colonies. At that time, both Englishmen and
Americans attached the same meaning to the word pardon. In the
convention which framed the Constitution, no effort was made to
define or change its meaning, although it was limited in cases of
impeachment."

															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 crime 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 contempts were had. Thomas of Chartham v. Benet of Stamford (1313), 24 Selden
Society 185; Fulwood v. Fulwood (1585), Toothill, 46; Rex v. Buckenham (1665), 1 Keble 751, 787, 852; Anonymous (1674), Cases in Chancery, 238; King and
Codrington v. Rodman (1630), Cro.Car.198; Bartram v.
Dannett (1676), Finch, 253; Phipps v. Earl of
Angelsea (1721), 1 Peere Williams, 696. Page 267 U. S. 111 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 inefficacy 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, 398; 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 still maintained in English law. In the Matter of a Special
Reference from Bahama Islands, Appeal Cases [1893], 138; Wellesley v. Duke of Beaufort, 2 Russell & Mylne, 639,
667, (where it is shown in the effect of a privilege from arrest of
members of Parliament analogous in its operation to a pardon); In re Freston, 11 Q.B.D. 545, 552; Queen v.
Barnardo, 23 Q.B.D. 305; O'Shea v. O'Shea and
Parnell, 15 P. & D. 59, 62, 63, 65; Lord Chancellor
Selborne, in the House of Lords, 276 Hansard, 1714, commenting on Greene's Case, 6 Appeal Cases, 657.

															In our own law, the same distinction clearly appears. Gompers v. Bucks Stove & Range Company, 221 U.
S. 418 ; Doyle v. London Guarantee Company, 204 U. S. 599 , 204 U. S. 607 ; Bessette v. Conkey Co., 194 U. S. 324 ; Alexander v. United States, 201 U.
S. 117 ; Union Tool Co. v. Wilson, 259 U.
S. 107 , 259 U. S. 109 .
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. Page 267 U. S. 112 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 23rd were, by resolution,
referred to a Committee on Detail for report of the Constitution
(II Farrand's Records of Constitutional Convention, 128, 129) and
contained the following (II 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 (II 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. IV Blackstone, 399. On August 25th (II Farrand, 411),
the words "except in cases of impeachment" were added after
"pardons" and the succeeding words were stricken out. On Saturday,
September 8th (II 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 (II 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 offences against the United States except in cases of
impeachment." There seems to have been no discussion over the
substance of the clause save that a motion to except cases of
treason was referred to the Committee on Style, September 10th (II
Farrand, 564), was not approved by the Committee, and, after
discussion, was defeated in the Convention September 15th (II
Farrand, 626, 627). Page 267 U. S. 113 We have given the history of the clause to show that the words
"for offences 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 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 today. 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 William
Wells , 18 Howard, 307, 59 U. S. 321 ,
but it did not prevail with the majority.

															It is said that "Offences against the United States," in the
pardon clause can include only crimes and misdemeanors Page 267 U. S. 114 defined and denounced by Congressional Act, because of the
decision of this Court in United States v.
Hudson , 7 Cranch 32. 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. The legislative authority of the Union must first make
an act a crime, affix a punishment to it and declare the court that
shall have jurisdiction of the offense. The Court admitted that

															"certain implied powers must necessarily result to our courts of
justice from the nature of their institution. But jurisdiction of
crimes against the state is not among those powers. To fine for
contempt -- imprison for contumacy -- enforce the observance of
order, etc., are powers which cannot be dispensed with in a court,
because they are necessary to the exercise of all the others, and
so far our courts no doubt possess powers not immediately derived
from statute; but all exercise of criminal jurisdiction in common
law cases we are of opinion is not within their implied
powers."

															The decision was by a majority of the Court, and among the
dissenting members was Mr. Justice Story, who expressed himself
with vigor to the contrary in United States v. Coolidge, 1
Gall. 488; Fed. Case No. 14,857, which was reversed by a majority
of the Court in 1 Wheat. 415. The Hudson decision was made
in 1812. It is not too much to say that, immediately after the
ratification of the Constitution, the power and jurisdiction of
federal courts to indict and prosecute common law Page 267 U. S. 115 crimes within the scope of federal judicial power was thought to
exist by most of the then members of this Court. The charge of
Chief Justice Jay to the Grand Jury in the United States Circuit
Court at Richmond in May, 1793, and the ruling by the United States
Circuit Court in Henfield's Case, Fed. Case No. 6,360;
Wharton's State Trials, 49, in which Mr. Justice Wilson and Mr.
Justice Iredell constituted the court, sustained this view. Mr.
Warren, in his valuable history of this Court, Vol. I, p. 433, says
that, in the early years of the Court, Chief Justice Ellsworth and
Justices Cushing, Paterson, and Washington had also delivered
opinions or charges of the same tenor. 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 "offences 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 "offences 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 ( In re Neale, 135 U. S.
1 , 135 U. S. 59 , et seq. ), 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. Page 267 U. S. 116 Gompers v. United States, 233 U.
S. 604 . In that case, this Court said (p. 233 U. S.
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
&c. 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 transplanted
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 , 165 U. S.
281 , 165 U. S. 282 . 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 Halsbury, Laws of England,
280, sub. v. Contempt of Court (604); Re Clements v.
Erlanger, 46 L.J. N. S., pp. 375, 383. Matter of
Macleod, 6 Jur. 461. Schreiber v. Lateward, 2 Dick.
592. Wellesley's Case, 2 Russ. & M. 639, 667. In
re Pollard, L.R. 2 P.C. 106, 120. Ex parte
Kearney , 7 Wheat. 38, 20 U. S.
43 . Bessette v. W. B. Conkey Co., 194 U. S.
324 , 194 U. S. 328 , 194 U. S.
331 , 194 U. S. 332 . Gompers
v. Bucks Stove & Range Co., 221 U. S.
418 , 221 U. S. 441 . " Page 267 U. S. 117 The recent case of Michaelson v. United States fully
bears out the same view. 266 U. S. 42 , 266 U. S. 66 , 266 U. S.
67 .

															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 "offences" is only used
twice in the original Constitution, once in the pardon clause, and
once in Article I, Section 8, among the powers of Congress "to
define and punish Piracies and Felonies committed on the high seas
and offences against the Law of Nations." In the amendments,
"offence" occurs but once, and that in the Fifth 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 "offences"
in the pardon clause.

															The argument is that the word "offences" is used in the
Constitution interchangeably with crimes and criminal prosecutions.
But as has been pointed out in Shick v. United States, 195 U. S. 65 , the
term "offences" 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 , 264 U. S. 104 , 264 U. S. 105 , 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 Sixth Amendment or common understanding." Bessette v. Conkey Co, 194 U.
S. 324 , 194 U. S. 326 .
Contempt proceedings are sui generis 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 Page 267 U. S. 118 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 Fifth and Sixth Amendments and of other cited parts
of the Constitution are not of significance in determining the
scope of pardons of "offences against the United States" in Article
II, Section 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 Op.A.G. 622.) Attorney
General Nelson in 1844 (4 Op.A.G. 317), Attorney General Mason in
1845 (4 Op.A.G. 458), and Attorney General Miller in 1890 (19
Op.A.G. 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 Page 267 U. S. 119 sustains the construction it is based on. Stuart v.
Laird , 1 Cranch 299, 5 U. S. 308 ; Cooley v. Board of
Wardens , 12 How. 299, 53 U. S. 315 ; Lithographic Company v. Sarony, 111 U. S.
53 , 111 U. S. 57 ; The Laura, 114 U. S. 411 , 114 U. S.
416 .

															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 Fed.2d 941.) The Circuit Court of Appeals
of the Eighth Circuit sustained it in a discussion, though not
necessary to the case, in In re Nevitt, 117 Fed. 448. The
Supreme Court of Wisconsin, by a majority, upheld it in State
ex rel. Rodd v. Verage, 177 Wis., 295, in remarks which were
also obiter. Taylor v. Goodrich, 25 Texas Civil
App. 109, is the only direct authority, and that deals with a
clause a little differently worded. The opposite conclusion was
reached in In re Mullee, 7 Blatchford, 23; Ex parte
Hickey, 12 Miss. 751; Louisiana v. Sauvinet, 24
La.Ann. 119; Sharp v. State, 102 Tenn. 9; State v.
Magee Publishing Company, 29 New Mexico 455.

															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 Page 267 U. S. 120 easily demonstrate. 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, 71 U. S. 380 .
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 others 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 cooperation 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 cooperation in the possible reluctance of
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 Page 267 U. S. 121 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 entrusted 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 reading criminal contempts out of the pardon clause by
departing from its ordinary meaning confirmed by its common law
origin and long years of practice and acquiescence.

															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. Page 267 U. S. 122 The power of a court to protect itself and its usefulness by
punishing contemnors 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 practiced 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 coordinating checks and balances of the
Constitution.

															The rule is made absolute, and the petitioner is discharged.

Summary: In Ex Parte Grossman (1925), the US Supreme Court ruled that criminal contempt, resulting from the disobedience of a court injunction, is an "offense against the United States" and falls under the President's pardon power. The Court's decision considered the historical context, the language of the Constitution, and long-standing practices, concluding that the President's power to pardon criminal contempt is established and does not undermine the independence of the judiciary.


U.S. Supreme Court United States v. Klein, 80 U.S. 13
Wall. 128 128 (1871) United States v.
Klein 80 U.S. (13 Wall.)
128 Syllabus 1. The Act of March 12th, 1863 (12 Stat. at Large 820), to
provide for the collection of abandoned and captured property in
insurrectionary districts within the United States, does not
confiscate, or in any case absolutely divest the property of the
original owner, even though disloyal. By the seizure, the
government constituted itself a trustee for those who were
entitled, or whom it should thereafter recognize as entitled.

															2. By virtue of the act of 17th July, 1862, authorizing the
President to offer pardon on such conditions as he might think
advisable, and the proclamation of 8th December, 1863, which
promised a restoration of all rights Page 80 U. S. 129 of property, except as to slaves, on condition that the
prescribed oath be taken and kept inviolate, the persons who had
faithfully accepted the conditions offered became entitled to the
proceeds of their property thus paid into the treasury, on
application within two years from the close of the war.

															3. The repeal, by an act of 21st January, 1867 (after the war
had closed), of the act of 17th July, 1862, authorizing the
executive to offer pardon, did not alter the operation of the
pardon, or the obligation of Congress to give full effect to it if
necessary by legislation.

															4. The proviso in the appropriation act of July 12th, 1870 (16
Stat. at Large 235), in substance,

															"That no pardon or amnesty granted by the President shall be
admissible in evidence on the part of any claimant in the Court of
Claims as evidence in support of any claim against the United
States, or to establish the standing of any claimant in said court,
or his right to bring or maintain suit therein; and that no such
pardon or amnesty heretofore put in evidence on behalf of any
claimant in that court be considered by it, or by the appellate
court on appeal from said court, in deciding upon the claim of such
claimant, or any appeal therefrom, as any part of the proof to
sustain the claim of the claimant, or to entitle him to maintain
his action in the Court of Claims, or on appeal therefrom, . . .
but that proof of loyalty [such as the proviso goes on to mention]
shall be made irrespective of the effective of any executive
proclamation, pardon, amnesty, or other set of condonation or
oblivion. And that, in all cases where judgment shall have been
heretofore rendered in the Court of Claims in favor of any claimant
on any other proof of loyalty than such as the provision requires,
this court shall, on appeal, have no further jurisdiction of the
cause, and shall dismiss the same for want of jurisdiction;"

															"And further, that whenever any pardon shall have heretofore
been granted by the President to any person bringing suit in the
Court of Claims for the proceeds of abandoned or captured property
under the act of March 12th, 1863, and such pardon shall recite, in
substance, that such person took part in the late rebellion, or was
guilty of any act of rebellion against, or disloyalty to, the
United States, and such pardon shall have been accepted, in
writing, by the person to whom the same issued, without an express
disclaimer of and protestation against such fact of guilt contained
in such acceptance, such pardon and acceptance shall be taken and
deemed in such suit in the said Court of Claims, and on appeal
therefrom, conclusive evidence that such person did take part in
and give aid and comfort to the late rebellion, and did not
maintain true allegiance or consistently adhere to the United
States, and, on proof of such pardon and acceptance, the
jurisdiction of the court in the case shall cease, and the court
shall forthwith dismiss the suit of such claimant . . ."

															is in conflict with the views expressed in paragraphs 1, 2, and
3 above, and is unconstitutional and void. Its substance being that
an acceptance of a pardon without a disclaimer shall be conclusive
evidence of the acts pardoned, but shall be null and void as
evidence of rights conferred by it, both in the Court of Claims and
in this court; it invades the powers both of the judicial and of
the executive departments of the government. Page 80 U. S. 130 This was a motion by Mr. Ackerman, Attorney General, in behalf
of the United States, to remand an appeal from the Court of Claims
which the government had taken in June, 1869, with a mandate that
the same be dismissed for want of jurisdiction as now required by
law.

															The case was thus:

															Congress, during the progress of the late rebellion, passed
various laws to regulate the subject of forfeiture, confiscation,
or appropriation to public use without compensation, of private
property whether real or personal of noncombatant enemies.

															The first was the act of July 13th, 1861. [ Footnote 1 ] It made liable to seizure and
forfeiture all property passing to and fro between the loyal and
insurrectionary States, and the vessels and vehicles by which it
should be attempted to be conveyed.

															So an act of August 6th, 1861, [ Footnote 2 ] subjected to seizure and forfeiture all
property of every kind, used or intended to be used in aiding,
abetting, or promoting the insurrection, or allowing or permitting
it to be so used.

															These statutes require judicial condemnation to make the
forfeiture complete.

															A more general law, and one upon which most of the seizures made
during the rebellion was founded, is the act of July 17th, 1862.
[ Footnote 3 ] It provides for
the punishment of treason, and specifies its disqualifications and
disabilities. In its sixth section, it provides that every person
who shall be engaged in or be aiding the rebellion, and shall not
cease and return to his allegiance within sixty days after
proclamation made by the President of the United States, shall
forfeit all his property, &c. The proclamation required by this
act was issued by the President on the 25th day of July, 1862.
[ Footnote 4 ] The sixty days
expired September 23d, 1862.

															On the 12th of March, 1863, Congress passed another species of
act -- the one entitled "An act to provide for the Page 80 U. S. 131 collection of abandoned property, &c., in insurrectionary
districts within the United States." The statute authorized the
Secretary of the Treasury to appoint special agents to receive and
collect all abandoned or captured property in any State or
Territory in insurrection: Provided, That such property shall not include any kind
or description which has been used, or which was intended to be
used, for waging or carrying on war against the United States, such
as arms, ordnance, ships, steamboats, or other watercraft, and
their furniture, forage, military supplies, or munitions of
war.

															The statute went on:

															"And any person claiming to have been the owner of any such
abandoned or captured property may, at any time within two years
after the suppression of the rebellion, prefer his claim to the
proceeds thereof in the Court of Claims, and on proof to the
satisfaction of said court of his ownership of said property,
of his right to the proceeds thereof, and that he has never
given any aid or comfort to the present rebellion, to receive
the residue of such proceeds after the deduction of any purchase
money which may have been paid, together with the expense of
transportation and sale of said property, and any other lawful
expenses attending the disposition thereof."

															Some other acts, amendatory of this one or relating to the Court
of Claims, required proof of the petitioner's loyalty during the
rebellion as a condition precedent to recovery.

															By the already mentioned confiscation act of July 17th, 1862,
the President was authorized by proclamation to extend to persons
who had participated in rebellion pardon and amnesty, with such
exceptions, and at such times, and on such conditions as he should
deem expedient for the public welfare.

															And on the 8th of December, 1863, he did issue his proclamation,
reciting the act, and that certain persons who had been engaged in
the rebellion desired to resume their allegiance and reinaugurate
loyal State governments within and for their respective States. And
thereupon proclaimed Page 80 U. S. 132 that a full pardon should be thereby granted to them, with
restoration of all rights of property, except as to slaves, and in
property cases where rights of third parties shall have intervened,
and upon condition that every such person shall take and subscribe
a prescribed oath of allegiance, and thenceforward keep and
maintain said oath inviolate, &c.

															Under this proclamation, V. F. Wilson, who during the rebellion
had voluntarily become the surety on the official bonds of certain
officers of the rebel confederacy, and so given aid and comfort, to
it, took, February 15th, 1864, this oath of allegiance, and had
kept the same inviolate.

															He himself having died in 1865, one Klein, his administrator,
filed a petition in the Court of Claims, setting forth Wilson's
ownership of certain cotton which he had abandoned to the treasury
agents of the United States, and which they had sold, putting the
proceeds into the Treasury of the United States, where they now
were, and from which the petitioner sought to obtain them. This
petition was filed December 26th, 1865.

															The section of the act of 1862, by which the President was
authorized to extend pardon and amnesty on such conditions as he
should deem expedient for the public welfare, was repealed on the
21st of January, 1867. [ Footnote
5 ]

															The Court of Claims, on the 26th May, 1869, decided that Wilson
had been entitled to receive the proceeds of his cotton, and
decreed $125,300 to Klein, the administrator of his estate. An
appeal was taken by the United States June 3d, following, and filed
in this court on the 11th December, of the same year.

															Previously to this case of Klein's, the Court of Claims had had
before it the case of one Padelford, quite like this one, for there
also the claimant, who had abandoned his cotton and now claimed its
proceeds, having participated in the rebellion, had taken the
amnesty oath. The Court of Claims held that the oath cured his
participation in the rebellion, Page 80 U. S. 133 and so it gave him a decree for the proceeds of his cotton in
the treasury. The United States brought that case here by appeal,
[ Footnote 6 ] and the decree of
the Court of Claims was affirmed, this court declaring that,
although Padelford had participated in the rebellion, yet, that
having been pardoned, he was as innocent in law as though he had
never participated, and that his property was purged of whatever
offence he had committed and relieved from any penalty that he
might have incurred. The judgment of this court to the effect above
mentioned was publicly announced on the 30th of April, 1870.

															Soon after this -- the bill making appropriations for the
legislative, executive, and judicial expenses of the government for
the year 1870-71 then pending in Congress -- the following was
introduced as a proviso to an appropriation of $100,000, in the
first section, for the payment of judgments in the Court of Claims,
and, with this proviso in it, the bill became a law July 12th,
1870: [ Footnote 7 ]

															" Provided, That no pardon or amnesty granted by the
President, whether general or special, by proclamation or
otherwise, nor any acceptance of such pardon or amnesty, nor oath
taken, or other act performed in pursuance or as a condition
thereof shall be admissible in evidence on the part of any claimant
in the Court of Claims as evidence in support of any claim against
the United States, or to establish the standing of any claimant in
said court, or his right to bring or maintain suit therein; nor
shall any such pardon, amnesty, acceptance, oath, or other act as
aforesaid, heretofore offered or put in evidence on behalf of any
claimant in said court, be used or considered by said court, or by
the appellate court on appeal from said court, in deciding upon the
claim of said claimant, or any appeal therefrom, as any part of the
proof to sustain the claim of the claimant, or to entitle him to
maintain his action in said Court of Claims, or on appeal
therefrom; but the proof of loyalty required by the Abandoned and
Captured Property Act, and by the sections of several acts quoted,
shall be made by proof of the matters required, Page 80 U. S. 134 irrespective of the effect of any executive proclamation,
pardon, amnesty, or other act of condonation or oblivion. And in
all cases where judgment shall have been heretofore rendered in the
Court of Claims in favor of any claimant, on any other proof of
loyalty than such as is above required and provided, and which is
hereby declared to have been and to be the true intent and meaning
of said respective acts, the Supreme Court shall, on appeal, have
no further jurisdiction of the cause, and shall dismiss the same
for want of jurisdiction."

															" And provided further, That whenever any pardon shall
have heretofore been granted by the President of the United States
to any person bringing suit in the Court of Claims for the proceeds
of abandoned or captured property under the said act, approved 12th
March, 1863, and the acts amendatory of the same, and such pardon
shall recite in substance that such person took part in the late
rebellion against the government of the United States, or was
guilty of any act of rebellion against, or disloyalty to, the
United States; and such pardon shall have been accepted in writing
by the person to whom the same issued without an express disclaimer
of, and protestation against, such fact of guilt contained in such
acceptance, such pardon and acceptance shall be taken and deemed in
such suit in the said Court of Claims, and on appeal therefrom,
conclusive evidence that such person did take part in, and give aid
and comfort to, the late rebellion, and did not maintain true
allegiance or consistently adhere to the United States; and on
proof of such pardon and acceptance, which proof may be heard
summarily on motion or otherwise, the jurisdiction of the court in
the case shall cease, and the court shall forthwith dismiss the
suit of such claimant."

															The motion already mentioned, of the Attorney General, that the
case be remanded to the Court of Claims with a mandate that the
same be dismissed for want of jurisdiction, as now required by law,
was, of course, founded on this enactment in the appropriation bill
of July 12th, 1870. Page 80 U. S. 136 The CHIEF JUSTICE delivered the opinion of the court.

															The general question in this case is whether or not the proviso
relating to suits for the proceeds of abandoned and captured
property in the Court of Claims, contained in the appropriation act
of July 12th, 1870, debars the defendant in error from recovering,
as administrator of V. F. Wilson, deceased, the proceeds of certain
cotton belonging to the decedent which came into the possession of
the agents of the Treasury Department as captured or abandoned
property, and the proceeds of which were paid by them according to
law into the Treasury of the United States.

															The answer to this question requires a consideration of the
rights of property, as affected by the late civil war, in the hands
of citizens engaged in hostilities against the United States.

															It may be said in general terms that property in the insurgent
States may be distributed into four classes:

															1st. That which belonged to the hostile organizations or was
employed in actual hostilities on land.

															2d. That which at sea became lawful subject of capture and
prize.

															3d. That which became the subject of confiscation.

															4th. A peculiar description, known only in the recent war,
called captured and abandoned property.

															The first of these descriptions of property, like property of
other like kind in ordinary international wars, became, wherever
taken, ipso facto, the property of the United States.
[ Footnote 8 ]

															The second of these descriptions comprehends ships and vessels
with their cargoes belonging to the insurgents or Page 80 U. S. 137 employed in aid of them, but property in these was not changed
by capture alone, but by regular judicial proceeding and
sentence.

															Accordingly, it was provided in the Abandoned and Captured
Property Act of March 12th, 1863, [ Footnote 9 ] that the property to be collected under it

															"shall not include any kind or description used or intended to
be used for carrying on war against the United States, such as
arms, ordnance, ships, steamboats and their furniture, forage,
military supplies, or munitions of war."

															Almost all the property of the people in the insurgent States
was included in the third description, for after sixty days from
the date of the President's proclamation of July 25th, 1862,
[ Footnote 10 ] all the
estates and property of those who did not cease to aid,
countenance, and abet the rebellion became liable to seizure and
confiscation, and it was made the duty of the President to cause
the same to be seized and applied, either specifically or in the
proceeds thereof, to the support of the army. [ Footnote 11 ] But it is to be observed that
tribunals and proceedings were provided by which alone such
property could be condemned, and without which it remained
unaffected in the possession of the proprietors.

															It is thus seen that, except to property used in actual
hostilities, as mentioned in the first section of the act of March
12th, 1863, no titles were divested in the insurgent States unless
in pursuance of a judgment rendered after due legal proceedings.
The government recognized to the fullest extent the humane maxims
of the modern law of nations, which exempt private property of
noncombatant enemies from capture as booty of war. Even the law of
confiscation was sparingly applied. The cases were few indeed in
which the property of any not engaged in actual hostilities was
subjected to seizure and sale.

															The spirit which animated the government received special
illustration from the act under which the present case arose. We
have called the property taken into the custody Page 80 U. S. 138 of public officers under that act a peculiar species, and it was
so. There is, so far as we are aware, no similar legislation
mentioned in history.

															The act directs the officers of the Treasury Department to take
into their possession and make sale of all property abandoned by
its owners or captured by the national forces, and to pay the
proceeds into the national treasury.

															That it was not the intention of Congress that the title to
these proceeds should be divested absolutely out of the original
owners of the property seems clear upon a comparison of different
parts of the act.

															We have already seen that those articles which became by the
simple fact of capture the property of the captor, as ordnance,
munitions of war, and the like, or in which third parties acquired
rights which might be made absolute by decree, as ships and other
vessels captured as prize, were expressly excepted from the
operation of the act; and it is reasonable to infer that it was the
purpose of Congress that the proceeds of the property for which the
special provision of the act was made should go into the treasury
without change of ownership. Certainly such was the intention in
respect to the property of loyal men. That the same intention
prevailed in regard to the property of owners who, though then
hostile, might subsequently become loyal, appears probable from the
circumstance that no provision is anywhere made for confiscation of
it, while there is no trace in the statute book of intention to
divest ownership of private property not excepted from the effect
of this act otherwise than by proceedings for confiscation.

															In the case of Padelford, we held that the right to the
possession of private property was not changed until actual seizure
by proper military authority, and that actual seizure by such
authority did not divest the title under the provisions of the
Abandoned and Captured Property Act. The reasons assigned seem
fully to warrant the conclusion. The government constituted itself
the trustee for those who were by that act declared entitled to the
proceeds of captured and abandoned property, and for those whom it
should thereafter Page 80 U. S. 139 recognize as entitled. By the act itself, it was provided that
any person claiming to have been the owner of such property might
prefer his claim to the proceeds thereof, and, on proof that he had
never given aid or comfort to the rebellion, receive the amount
after deducting expenses.

															This language makes the right to the remedy dependent upon proof
of loyalty, but implies that there may be proof of ownership
without proof of loyalty. The property of the original owner is in
no case absolutely divested. There is, as we have already observed,
no confiscation, but the proceeds of the property have passed into
the possession of the government, and restoration of the property
is pledged to none except to those who have continually adhered to
the government. Whether restoration will be made to others, or
confiscation will be enforced, is left to be determined by
considerations of public policy subsequently to be developed.

															It is to be observed, however, that the Abandoned and Captured
Property Act was approved on the 12th of March, 1863, and on the
17th of July, 1862, Congress had already passed an act -- the same
which provided for confiscation -- which authorized the
President,

															"at any time hereafter, by proclamation, to extend to persons
who may have participated in the existing rebellion, in any State
or part thereof, pardon and amnesty, with such exceptions and at
such time and on such conditions as he may deem expedient for the
public welfare."

															The act of the 12th of March, 1863, provided for the sale of
enemies' property collected under the act, and payment of the
proceeds into the treasury, and left them there subject to such
action as the President might take under the act of the 17th of
July, 1862. What was this action?

															The suggestion of pardon by Congress, for such it was, rather
than authority, remained unacted on for more than a year. At
length, however, on the 8th of December, 1863, [ Footnote 12 ] the President issued a
proclamation in which he referred to that act and offered a full
pardon, with restoration of all Page 80 U. S. 140 rights of property, except as to slaves and property in which
rights of third persons had intervened, to all, with some
exceptions, who, having been engaged in the rebellion as actual
participants, or as aiders or abettors, would take and keep
inviolate a prescribed oath. By this oath, the person seeking to
avail himself of the offered pardon was required to promise that he
would thenceforth support the Constitution of the United States and
the union of the States thereunder, and would also abide by and
support all acts of Congress and all proclamations of the President
in reference to slaves, unless the same should be modified or
rendered void by the decision of this court.

															In his annual message, transmitted to Congress on the same day,
the President said "the Constitution authorizes the Executive to
grant or withhold pardon at his own absolute discretion." He
asserted his power "to grant it on terms as fully established," and
explained the reasons which induced him to require applicants for
pardon and restoration of property to take the oath prescribed, in
these words:

															"Laws and proclamations were enacted and put forth for the
purpose of aiding in the suppression of the rebellion. To give them
their fullest effect, there had to be a pledge for their
maintenance. In my judgment, they have aided, and will further aid,
the cause for which they were intended. To now abandon them would
not only be to relinquish a lever of power, but would also be a
cruel and astounding breach of faith. . . . For these and other
reasons, it is thought best that support of these measures shall be
included in the oath, and it is believed the Executive may lawfully
claim it in return for pardon and restoration of forfeited rights,
which he has clear constitutional power to withhold altogether or
grant upon the terms which he shall deem wisest for the public
interest."

															The proclamation of pardon, by a qualifying proclamation issued
on the 26th of March, 1864, [ Footnote 13 ] was limited to those persons only who, being
yet at large and free from confinement Page 80 U. S. 141 or duress, shall voluntarily come forward and take the said oath
with the purpose of restoring peace and establishing the national
authority.

															On the 29th of May, 1865, [ Footnote 14 ] amnesty and pardon, with the restoration of
the rights of property except as to slaves, and that as to which
legal proceedings had been instituted under laws of the United
States, were again offered to all who had, directly or indirectly,
participated in the rebellion, except certain persons included in
fourteen classes. All who embraced this offer were required to take
and subscribe an oath of like tenor with that required by the first
proclamation.

															On the 7th of September, 1867, [ Footnote 15 ] still another proclamation was issued,
offering pardon and amnesty, with restoration of property, as
before and on the same oath, to all but three excepted classes.

															And finally, on the 4th of July, 1868, [ Footnote 16 ] a full pardon and amnesty was
granted, with some exceptions, and on the 25th of December, 1868,
[ Footnote 17 ] without
exception, unconditionally and without reservation, to all who had
participated in the rebellion, with restoration of rights of
property as before. No oath was required.

															It is true that the section of the act of Congress which
purported to authorize the proclamation of pardon and amnesty by
the President was repealed on the 21st of January, 1867, but this
was after the close of the war, when the act had ceased to be
important as an expression of the legislative disposition to carry
into effect the clemency of the Executive, and after the decision
of this court that the President's power of pardon "is not subject
to legislation;" that "Congress can neither limit the effect of his
pardon, nor exclude from its exercise any class of offenders."
[ Footnote 18 ] It is not
important, therefore, to refer to this repealing act further than
to say that it is impossible to believe, while the repealed
provision was in full force, and the faith of the legislature Page 80 U. S. 142 as well as the Executive was engaged to the restoration of the
rights of property promised by the latter, that the proceeds of
property of persons pardoned, which had been paid into the
treasury, were to be withheld from them. The repeal of the section
in no respect changes the national obligation, for it does not
alter at all the operation of the pardon, or reduce in any degree
the obligations of Congress under the Constitution to give full
effect to it, if necessary, by legislation.

															We conclude, therefore, that the title to the proceeds of the
property which came to the possession of the government by capture
or abandonment, with the exceptions already noticed, was in no case
divested out of the original owner. It was for the government
itself to determine whether these proceeds should be restored to
the owner or not. The promise of the restoration of all rights of
property decides that question affirmatively as to all persons who
availed themselves of the proffered pardon. It was competent for
the President to annex to his offer of pardon any conditions or
qualifications he should see fit; but after those conditions and
qualifications had been satisfied, the pardon and its connected
promises took full effect. The restoration of the proceeds became
the absolute right of the persons pardoned, on application within
two years from the close of the war. It was, in fact, promised for
an equivalent. "Pardon and restoration of political rights" were
"in return" for the oath and its fulfillment. To refuse it would be
a breach of faith not less "cruel and astounding" than to abandon
the freed people whom the Executive had promised to maintain in
their freedom.

															What, then, was the effect of the provision of the act of 1870
[ Footnote 19 ] upon the right
of the owner of the cotton in this case? He had done certain acts
which this court [ Footnote
20 ] has adjudged to be acts in aid of the rebellion, but he
abandoned the cotton to the agent of the Treasury Department, by
whom it has been sold and the proceeds paid into the Treasury of
the Page 80 U. S. 143 United States; and he took, and has not violated, the amnesty
oath under the President's proclamation. Upon this case, the Court
of Claims pronounced him entitled to a judgment for the net
proceeds in the treasury. This decree was rendered on the 26th of
May, 1869; the appeal to this court made on the 3d of June, and was
filed here on the 11th of December, 1869.

															The judgment of the court in the case of Padelford, which, in
its essential features, was the same with this case, was rendered
on the 30th of April, 1870. It affirmed the judgment of the Court
of Claims in his favor.

															Soon afterwards, the provision in question was introduced as a
proviso to the clause in the general appropriation bill
appropriating a sum of money for the payment of judgments of the
Court of Claims, and became a part of the act, with perhaps little
consideration in either House of Congress.

															This proviso declares in substance that no pardon, acceptance,
oath, or other act performed in pursuance, or as a condition of
pardon shall be admissible in evidence in support of any claim
against the United States in the Court of Claims, or to establish
the right of any claimant to bring suit in that court; nor, if
already put in evidence, shall be used or considered on behalf of
the claimant, by said court, or by the appellate court on appeal.
Proof of loyalty is required to be made according to the provisions
of certain statutes, irrespective of the effect of any executive
proclamation, pardon, or amnesty, or act of oblivion; and when
judgment has been already rendered on other proof of loyalty, the
Supreme Court, on appeal, shall have no further jurisdiction of the
cause, and shall dismiss the same for want of jurisdiction. It is
further provided that whenever any pardon, granted to any suitor in
the Court of Claims, for the proceeds of captured and abandoned
property, shall recite in substance that the person pardoned took
part in the late rebellion, or was guilty of any act of rebellion
or disloyalty, and shall have been accepted in writing without
express disclaimer and protestation against the fact so recited,
such pardon or acceptance shall be taken as conclusive evidence Page 80 U. S. 144 in the Court of Claims, and on appeal, that the claimant did
give aid to the rebellion, and, on proof of such pardon or
acceptance, which proof may be made summarily on motion or
otherwise, the jurisdiction of the court shall cease, and the suit
shall be forthwith dismissed.

															The substance of this enactment is that an acceptance of a
pardon without disclaimer shall be conclusive evidence of the acts
pardoned, but shall be null and void as evidence of the rights
conferred by it, both in the Court of Claims and in this court on
appeal.

															It was urged in argument that the right to sue the government in
the Court of Claims is a matter of favor, but this seems not
entirely accurate. It is as much the duty of the government as of
individuals to fulfil its obligations. Before the establishment of
the Court of Claims, claimants could only be heard by Congress.
That court was established in 1855 [ Footnote 21 ] for the triple purpose of relieving
Congress, and of protecting the government by regular
investigation, and of benefiting the claimants by affording them a
certain mode of examining and adjudicating upon their claims. It
was required to hear and determine upon claims founded upon any law
of Congress, or upon any regulation of an executive department, or
upon any contract, express or implied, with the government of the
United States. [ Footnote 22 ]
Originally it was a court merely in name, for its power extended
only to the preparation of bills to be submitted to Congress.

															In 1863, the number of judges was increased from three to five,
its jurisdiction was enlarged, and, instead of being required to
prepare bills for Congress, it was authorized to render final
judgment, subject to appeal to this court and to an estimate by the
Secretary of the Treasury of the amount required to pay each
claimant. [ Footnote 23 ] This
court being of opinion [ Footnote
24 ] that the provision for an estimate was inconsistent with
the finality essential to judicial decisions, Congress repealed
that provision. [ Footnote
25 ] Since then, the Court of Claims has exercised Page 80 U. S. 145 all the functions of a court, and this court has taken full
jurisdiction on appeal. [ Footnote 26 ]

															The Court of Claims is thus constituted one of those inferior
courts which Congress authorizes, and has jurisdiction of contracts
between the government and the citizen, from which appeal regularly
lies to this court.

															Undoubtedly the legislature has complete control over the
organization and existence of that court, and may confer or
withhold the right of appeal from its decisions. And if this act
did nothing more, it would be our duty to give it effect. If it
simply denied the right of appeal in a particular class of cases,
there could be no doubt that it must be regarded as an exercise of
the power of Congress to make "such exceptions from the appellate
jurisdiction" as should seem to it expedient.

															But the language of the proviso shows plainly that it does not
intend to withhold appellate jurisdiction except as a means to an
end. Its great and controlling purpose is to deny to pardons
granted by the President the effect which this court had adjudged
them to have. The proviso declares that pardons shall not be
considered by this court on appeal. We had already decided that it
was our duty to consider them and give them effect, in cases like
the present, as equivalent to proof of loyalty. It provides that,
whenever it shall appear that any judgment of the Court of Claims
shall have been founded on such pardons, without other proof of
loyalty, the Supreme Court shall have no further jurisdiction of
the case, and shall dismiss the same for want of jurisdiction. The
proviso further declares that every pardon granted to any suitor in
the Court of Claims and reciting that the person pardoned has been
guilty of any act of rebellion or disloyalty shall, if accepted in
writing without disclaimer of the fact recited, be taken as
conclusive evidence in that court and on appeal of the act recited,
and, on proof of pardon or acceptance, summarily made on motion Page 80 U. S. 146 or otherwise, the jurisdiction of the court shall cease and the
suit shall be forthwith dismissed.

															It is evident from this statement that the denial of
jurisdiction to this court, as well as to the Court of Claims, is
founded solely on the application of a rule of decision, in causes
pending, prescribed by Congress. The court has jurisdiction of the
cause to a given point, but when it ascertains that a certain state
of things exists, its jurisdiction is to cease and it is required
to dismiss the cause for want of jurisdiction.

															It seems to us that this is not an exercise of the acknowledged
power of Congress to make exceptions and prescribe regulations to
the appellate power.

															The court is required to ascertain the existence of certain
facts, and thereupon to declare that its jurisdiction on appeal has
ceased by dismissing the bill. What is this but to prescribe a rule
for the decision of a cause in a particular way? In the case before
us, the Court of Claims has rendered judgment for the claimant, and
an appeal has been taken to this court. We are directed to dismiss
the appeal if we find that the judgment must be affirmed because of
a pardon granted to the intestate of the claimants. Can we do so
without allowing one party to the controversy to decide it in its
own favor? Can we do so without allowing that the legislature may
prescribe rules of decision to the Judicial Department of the
government in cases pending before it?

															We think not, and, thus thinking, we do not at all question what
was decided in the case of Pennsylvania v. Wheeling Bridge
Company. [ Footnote 27 ]
In that case, after a decree in this court that the bridge, in the
then state of the law, was a nuisance, and must be abated as such,
Congress passed an act legalizing the structure and making it a
post-road, and the court, on a motion for process to enforce the
decree, held that the bridge had ceased to be a nuisance by the
exercise of the constitutional powers of Congress, and denied the
motion. No arbitrary rule of decision was prescribed in that
case, Page 80 U. S. 147 but the court was left to apply its ordinary rules to the new
circumstances created by the act. In the case before us, no new
circumstances have been created by legislation. But the court is
forbidden to give the effect to evidence which, in its own
judgment, such evidence should have, and is directed to give it an
effect precisely contrary.

															We must think that Congress has inadvertently passed the limit
which separates the legislative from the judicial power.

															It is of vital importance that these powers be kept distinct.
The Constitution provides that the judicial power of the United
States shall be vested in one Supreme Court and such inferior
courts as the Congress shall from time to time ordain and
establish. The same instrument, in the last clause of the same
article, provides that, in all cases other than those of original
jurisdiction,

															"the Supreme Court shall have appellate jurisdiction both as to
law and fact, with such exceptions and under such regulations as
the Congress shall make."

															Congress has already provided that the Supreme Court shall have
jurisdiction of the judgments of the Court of Claims on appeal. Can
it prescribe a rule in conformity with which the court must deny to
itself the jurisdiction thus conferred, because and only because
its decision, in accordance with settled law, must be adverse to
the government and favorable to the suitor? This question seems to
us to answer itself.

															The rule prescribed is also liable to just exception as
impairing the effect of a pardon, and thus infringing the
constitutional power of the Executive.

															It is the intention of the Constitution that each of the great
coordinate departments of the government -- the Legislative, the
Executive, and the Judicial -- shall be, in its sphere, independent
of the others. To the executive alone is intrusted the power of
pardon; and it is granted without limit. Pardon includes amnesty.
It blots out the offence pardoned, and removes all its penal
consequences. It may be granted on conditions. In these particular
pardons, Page 80 U. S. 148 that no doubt might exist as to their character, restoration of
property was expressly pledged, and the pardon was granted on
condition that the person who availed himself of it should take and
keep a prescribed oath.

															Now it is clear that the legislature cannot change the effect of
such a pardon any more than the executive can change a law. 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.

															We think it unnecessary to enlarge. The simplest statement is
the best.

															We repeat that it is impossible to believe that this provision
was not inserted in the appropriation bill through inadvertence,
and that we shall not best fulfill the deliberate will of the
legislature by DENYING the motion to dismiss and AFFIRMING the
judgment of the Court of Claims; which is

															ACCORDINGLY DONE.

															[ Footnote 1 ]

															12 Stat. at Large 257.

															[ Footnote 2 ] Ib. 319.

															[ Footnote 3 ] Ib. 589.

															[ Footnote 4 ] Id. 1266.

															[ Footnote 5 ]

															14 Stat. at Large 377.

															[ Footnote 6 ] United States v.
Padelford , 9 Wallace 531.

															[ Footnote 7 ]

															16 Stat. at Large 235.

															[ Footnote 8 ]

															Halleck's International Law.

															[ Footnote 9 ]

															12 Stat. at Large 820.

															[ Footnote 10 ] Ib. 1266.

															[ Footnote 11 ] Ib. 590.

															[ Footnote 12 ]

															13 Stat. at Large 737.

															[ Footnote 13 ]

															13 Stat. at Large 741.

															[ Footnote 14 ]

															13 Stat. at Large 758.

															[ Footnote 15 ]

															15 Id. 699.

															[ Footnote 16 ] Ib. 702.

															[ Footnote 17 ] Ib. 711.

															[ Footnote 18 ]

															14th January, 1867.

															[ Footnote 19 ]

															16 Stat. at Large 235.

															[ Footnote 20 ] United States v.
Padelford , 9 Wallace 531.

															[ Footnote 21 ]

															10 Stat. at Large 612.

															[ Footnote 22 ] Ib. [ Footnote 23 ]

															12 Ib. 765.

															[ Footnote 24 ] 69 U. S. 2 Wallace
561.

															[ Footnote 25 ]

															14 Stat. at Large 9.

															[ Footnote 26 ]

															14 Stat. at Large 44, 391, 444.

															[ Footnote 27 ] 59 U. S. 18 Howard 429.

															Mr. Justice MILLER (with whom concurred Mr. Justice BRADLEY),
dissenting.

															I cannot agree to the opinion of the court just delivered in an
important matter, and I regret this the more because I do agree to
the proposition that the proviso to the act of July 12th, 1870, is
unconstitutional so far as it attempts to prescribe to the
judiciary the effect to be given to an act of pardon or amnesty by
the President. This power of pardon is confided to the President by
the Constitution, and whatever may be its extent or its limits, the
legislative branch of the government cannot impair its force or
effect in a judicial proceeding in a constitutional court. But I
have not been able to bring my mind to concur in the proposition
that, under the act concerning captured and abandoned property,
there remains in the former owner, who had given aid and Page 80 U. S. 149 comfort to the rebellion, any interest whatever in the property
or its proceeds when it had been sold and paid into the treasury or
had been converted to the use of the public under that act. I must
construe this act, as all others should be construed, by seeking
the intention of its framers, and the intention to restore the
proceeds of such property to the loyal citizen, and to transfer it
absolutely to the government in the case of those who had given
active support to the rebellion, is, to me, too apparent to be
disregarded. In the one case, the government is converted into a
trustee for the former owner; in the other, it appropriates it to
its own use as the property of a public enemy captured in war. Can
it be inferred from anything found in the statute that Congress
intended that this property should ever be restored to the
disloyal? I am unable to discern any such intent. But if it did,
why was not some provision made by which the title of the
government could at some time be made perfect, or that of the owner
established? Some judicial proceeding for confiscation would seem
to be necessary if there remains in the disloyal owner any right or
interest whatever. But there is no such provision, and unless the
act intended to forfeit absolutely the right of the disloyal owner,
the proceeds remain in a condition where the owner cannot maintain
a suit for its recovery, and the United States can obtain no
perfect title to it.

															This statute has recently received the attentive consideration
of the court in two reported cases.

															In the case of the United States v. Anderson, [ Footnote 2/1 ] in reference to the relation
of the government to the money paid into the treasury under this
act, and the difference between the property of the loyal and
disloyal owner, the court uses language hardly consistent with the
opinion just read. It says that Congress, in a spirit of
liberality, constituted the government a trustee for so much of
this property as belonged to the faithful Southern people, and
while it directed that all of it should be sold and its proceeds
paid into the treasury, gave to this class of persons an
opportunity to establish Page 80 U. S. 150 their right to the proceeds. Again, it is said that

															"the measure, in itself of great beneficence, was practically
important only in its application to the loyal Southern people, and
sympathy for their situation doubtless prompted Congress to pass
it."

															These views had the unanimous concurrence of the court. If I
understand the present opinion, however, it maintains that the
government, in taking possession of this property and selling it,
became the trustee of all the former owners, whether loyal or
disloyal, and holds it for the latter until pardoned by the
President, or until Congress orders it to be restored to him.

															The other case which I refer to is that of United States v.
Padelford. [ Footnote 2/2 ] In
that case, the opinion makes a labored and successful effort to
show that Padelford, the owner of the property, had secured the
benefit of the amnesty proclamation before the property was seized
under the same statute we are now considering. And it bases the
right of Padelford to recover its proceeds in the treasury on the
fact that before the capture his status as a loyal citizen had been
restored, and with it all his rights of property, although he had
previously given aid and comfort to the rebellion. In this view, I
concurred with all my brethren. And I hold now that, as long as the
possession or title of property remains in the party, the pardon or
the amnesty remits all right in the government to forfeit or
confiscate it. But where the property has already been seized and
sold, and the proceeds paid into the treasury, and it is clear that
the statute contemplates no further proceeding as necessary to
divest the right of the former owner, the pardon does not and
cannot restore that which has thus completely passed away. And if
such was not the view of the court when Padelford's case was under
consideration, I am at a loss to discover a reason for the extended
argument in that case, in the opinion of the court, to show that he
had availed himself of the amnesty before the seizure of the
property. If the views now advanced are sound, it was wholly
immaterial whether Padelford was pardoned before or after the
seizure.

															[ Footnote 2/1 ] 76 U. S. 9 Wallace 65.

															[ Footnote 2/2 ] 76 U. S. 9 Wallace
531.

Summary: The Supreme Court ruled that the US government acted as a trustee for the property of disloyal citizens during the Civil War, and that loyal citizens were entitled to the proceeds of their property paid into the treasury. The Court also determined that a pardon from the President restored property rights, even if the property had already been seized and sold, and that Congress was obligated to honor the terms of pardons. In this case, the Court interpreted the Abandoned and Captured Property Act of 1863 and related legislation, and established the government's role as a trustee for citizens' property during times of insurrection.