Ex parte Grossman
| Citation | 267 U.S. 87,38 A.L.R. 131,45 S.Ct. 332,69 L.Ed. 527 |
| Decision Date | 02 March 1925 |
| Docket Number | No. 24,24 |
| Parties | Ex parte GROSSMAN |
| Court | United States Supreme Court |
Messrs. Louis J. Behan and Robert A. Milroy, both of Chicago, Ill., for petitioner.
[Syllabus and Argument of Counsel from pages 87-89 intentionally omitted] Messrs. Amos C. Miller and F. Bruce Johnstone, both of Chicago, Ill., for respondents.
[Argument of Counsel from pages 92-101 intentionally omitted]
Mr. Attorney General Stone for the President of the United States as amicus curiae by special leave of Court.
[Argument of Counsel from pages 101-107 intentionally omitted]
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, Ill. The defendant 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 (41 Stat. 305, 314, c. 85; Comp. St. Ann. Supp. 1923, § 10138 1/2k), 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 alter 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 sole 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, Grossman v. United States, 280 F. 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. United States v. Grossman, 1 F.(2d) 941. The only
question raised by the pleadings herein is that of the power of the President to grant the pardon.
Special counsel, employed by the Department of Justice, appear for the defendant to uphold the legality of the detention. The Attorney General of the United States, as amicus curiae, maintains the validity and effectiveness of the President's action. The petitioner by his counsel urges his discharge from imprisonment.
Article 2, § 2, cl. 1, of the Constitution, dealing with the powers and duties of the President, closes with these words:
'And he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.'
The argument for the defendant is that the President's power extends only to offenses against the United States and a contempt of court is not such an offense, that offenses against the United States are not common-law offenses but can only be created by legislative act, that the President's pardoning power is more limited than that of the king of England at common law, which was a broad prerogative and included contempts against his courts chiefly because the judges thereof were his agents and acted in his name, that the context of the Constitution shows that the word 'offenses' is used in that instrument only to include crimes and 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
British institutions as they were when the instrument was framed and adopted. The statemen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.
In a case presenting the question whether a pardon should be pleaded in bar to be effective, Chief Justice Marshall said of the power of pardon (United States v. Wilson, 7 Pet. 150, 160 ):
'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 How. 307, 311, 15 L. Ed. 421, the question was whether the President under his power to pardon could commute a death sentence to life imprisonment by granting a prdon 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 donstrued with reference to its meaning
at the time of its adoption. At the time of our separation from Great Britain, that power had been exercised by the king, as 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 crimes 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.
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 in so far 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. IV Blackstone, 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 [1893] Appeal Cases, 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. Buck's Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Doyle v. London Guarantee Co., 204 U. S. 599, 607, 27 S. Ct. 313, 51 L. Ed. 641; Bessette v. Conkey Co., 194 U. S. 324, 24 S. Ct. 665, 48 L. Ed. 997; Alexander v. United States, 201 U. S. 117, 26 S. Ct. 356, 50 L. Ed. 686; Union Tool Co. v. Wilson, 259 U. S. 107, 109, 42 S. Ct. 427, 66 L. Ed. 848. 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...
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