davidaulloa/AmericanStories huggingface dataset:
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

tin, r., PIP. 4. 10-l1; Burdick, R., PIP. 4,
., l3-14) This is not denied by them.
The pardons have passed out of
the control of the President and of the
Executive Department of the govern
ment with the intention that they shall
pass TO the plaintiffs-in-erro so that
there has been as complete a delivery
as 1t is possible to make, and If they
are not irrevocable now, they would
become so at the very instant that the
required testimony was given.
In these circumstances, they afford
ms complete a protection as does an
immunity statute, for the compulsory
operation Of which there is, of course,
no necessity of acceptance, notwith-
standing that such an act, as has been
said (BrotCn q. Walker, 161 L. s. SOL.
6Ol) "is virtually an act of general
amnesty"
They are as complete bar 70 pros
ecution as would be general pardon
or amnesty, which the President has
the power TO grant go Op. Atty. Gen,
1900, and of which there is neither
formal delivery nor acceptance.
II is the object of the constitutional
privilege to protect the witness from
the danger of prosecution for q past
offence which his evidence may disclose
or TO which his evidence may give a
clew. But, since that danger has been
completely removed by the pardons of
which the plaintiffs may avail them
selves at any time after the moment Of
testifying, the constitutional privilege
cannot be invoked by them, for there
is nothing for it to apply to, /. e., no
danger to protect them against
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
ACT is USURPATION
OF UNGRANTED POWER

in that attribute of Deity whose judg-
ments are always tempered with mercy.
And il was with the fullest knowledge
Of the law upon the subject of pardons,
and the philosophy of government in
its bearing upon the Constitution, when
this court instructed Chief Justice
Marshall 10 say, in the United States
agt. Wilson. Pet, 1872: AS the power
has been exercised from time imme-
mortal 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 il is to be used by
the person who would avail himself of
it, We still think so, and that the
language used in the Constitution. con-
ferring the power 10 grant reprieves
and pardons, must be construed with
reference TO its meaning at the time OF
its adoption. =.
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
It's representatives in the colonies (E@
p0rto Wells, spDrd)
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

This. Mr.. Wise continued. brings US
TO the consideration of the next prop
osition-i. e., that plaintif-in-error
having refused to accept the rendered
nardon the same is null, void and OF no
effect. The authorities hereinbefore
cited are all 70 the effect that "a par.
don is gracious act of mercy.
Throughout these authorities IT is re-
ferred to as grant"
In wilson q. United States g Peters.
1907, the defendant, Wilson, waived
and declined any advantage OF protec-
ton which might arise from pardon
issued by the President of the United
States. The question of the appliea-
bilitv of the pardon TO an offence 70
which the defendant had pleaded guilty
was brought before the Supreme Court
On behalf of the United States the
question was argued by the then At
torney General, who was afterward
Chief Justice of the United States,
Hon. Roger b. fancy.
lie contended in that case, as we now
contend, that the pardon IN question
lis not q statute pdrdon," and "thdt me
Court cannot OiUe the prisoner the ben
eft Of the pardon unless ne CLAIMS tHe
benefit OF q and relies on u by pea or
n Is not material 10 This inquiry bW ne
claim must be made IN some shape ,6y
him. j, IS grant 10 him: y H ms
PROPERTY: and he may accept u ~ OF noL
as he pIeGSeS."
In the cases at bar the plaintiffs-in-
error insist upon the soundness OF At
torney General Tsney's insistent con-
tention, "thGt unless he pie0ds u, or
IN some ray claims as b6Reft, there
bJ denOt3ng his acceptance Of the prof
Jsred grace, the court cannot notice a.
Tho foregoing arguments OF the
learned Attorney General Indicate tnat
in the days when those men who
framed the Constitution of the United
States were still alive the power to
grant reprieves and pardons conferred
upon the President by the Constitu-
ton did not carry with Il any power to
compel acceptance Of any reprieve or
pardon granted Hereunder. But we
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

Ii is true that 1t has been held that
pardon may be granted at any stage OIL
a criminal trial and either before or
after conviction, but 1t has not been
held that an accused person who is on
trial may be deprived of the opportu.
nifty of being acquitted by verdict OF
the jury by having pardon thrust
upon him whether he will take IT or
not. In the present case there IS not
even an alleged offence. There is only
the hypothetical possibility that there
may have been an offence. Still less
should the clause be construed az
though it read "for offences, actual or
coniectural, against the United states:
The word Offences" as it occurs IN TINS
phrase must, on a mere verbal analysis
of the clause according TO the ordinary
habit of expression which prevails
among intelligent men, be construed as
Intended 10 denote something dehnlte
and demonstrated and not as INTENDED
to connote something. purely speeu-
lative and hypothetical. =.
When we turn from the language OF
the instrument to the purpose OF the
grant this conclusion is fortified. The
purpose of the grant as already shown
was that there might exist somewhere
within the machinery Of the govern
ment a power to temper justice with
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
Continued from page 1

Mr.. sackett's brief was devoted to
showing the pernicious effects on pub
lie interests by upholding the validity
of the rejected pardon. He argued that
this would pervert the grand jury from
an institution intended TO be barrier
against official tyranny into an instru-
ment Of inquisition that might be used
by the Executive department to throt,,
tie free and wholesome criticism OF
the acts Of public officials, and that 1t
would tend TO revive a system OF cen.
sorship of news concerning the acts OF
public officials that the constitutional
protection Of liberty of the press was
Intended to abolish.
Solicitor General Davis contended
that the pardon Of the President was
the equivalent of federal statute OF
immunity, and afforded protection 70
the witnesses % broad as their con-
stitutional privileges, and that no &C
ceptance was necessary TO It's validity.
Upon the oral argument before the
Supreme Court to-day the justices
showed the greatest interest in the DIS
cussion. asking many questions, par.
ticularly during the oral argument OF
Mr.. Wise.
Following is a summary OF the srgu-
ments f the three counsel as set form
in their briefs:
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

This next point Mr.. Sackett sum-
married. as follows:
THE construction of the words con-
ferring the pardonlng power that is
contended for by the United States
would tend to destroy some OF the most
essential safeguards of free govern
ment. 1t would pervert the grand Jury
which, in its origin, was an institution
which stood as q barrier against perse-
cution by the Crown into an instru,
ment of inquisition that might be USED
by the Executive Department for the
purpose of throttling the free ana
wholesome criticism Of the acts OF pub
lie officials. It would tend 20 destroy
TO a dangerous degree the separation
of powers between the executive anu
the judicial branches of the govern
ment and in practical effect would arm
the executive with summary powers
which ought to be possessed only py
the judicial branch. IL would inevitably
create the possibility of putting INTO
effect a system of censorship Oh new
concerning the acts Of public oficials
and tend to the creation OF a secret
and powerful bureaucracy.
Mr.. Sackett urged that tins presence
an aspect of the question worthy OIL the
most serious consideration or tne court
and made his main arguments IN the
following form; 49,.
We believe that decision OF TINS
case supporting the learned Court Oelow
is big with the possibilities OF mischiei
and oppression. This may not De APP
parent to the Court upon It's nrst eN-
animation Of the record, and we mere,
fore invoke the Courts most ca1eiui
attention 70 the condition OF law ana
fsct that would exist in the event that
the attempted exercise of the pardonlng
nover in this case were held valid.
The instrument purporting to be
nardon signed by the President very
frankly states the purpose for when
the pardon was protfered.
"Vhereas William |. Curtin, re-
rorter on the New York Tribune, has
declined TO testify :. as TO the source
NJ bis information from which he wrote
an article that appeared IN the issue
of The New York Tribune or Decem-
Der 18th, 1913,
Whereas, The United States attor-
,o,, desires to use the said Will
lam |. Curtin as a witness :, 20,
tbe nurDoSe Of determining tCHetheF any
en- nio,,e OF the Treasury Department az
the custom House. Net0 YORK Ctv, nd lS
been betraying infornldtI9n tnot c1N''
1t is not a crime for an employe Of
the Treasury Department to give out
information concerning official acts or
matters. IL is a violation of regu-
lation of the Department, but 1T IS not
a crime under any statute of the United
States. Further, it is not a crime to
receive innocently from an official or
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
PARDON NO SUBSTITUTE
FOR INDIVIDUAL RIGHT

which clearly indicates that the I'M
munity is intended to be general and
to be applicable whenever and in what
ever Court such prosecution may be
had Up. 6Os).
Even admitting that the President
may force his pardon upon a witness,
IL is still apparent that such pardon
carries with it no such broad scope and
effect as an act of Congress. For the inn
munity incident to the pardon can be no
broader than the pardon. The Presi-
ident may only grant pardons for
Offences against the United States"
His pardon is not the paramount law
of the sovereign states and is not zap
plicable whenever and in whatever
Court such prosecution may be had"
but only in such Courts as the par
doned person may be prosecuted for
offences against the United States.
The assertion that the witnesses dis
closure may tend to criminate him Of
an offence against some one or more of
the States rs not the setting up of an
imaginary danger IL is the setting up
OF reasonable and probable conse-
quence. against which he receives no
protection from the proffered pardon.
II Is matter Of common knowledge. OF
which this Court may take judicial
notice, that from the same state Of
facts a man may be criminally liable
for offending against the laws of the
Federal and State Governments. Vio-
lations of the Federal Pure Food Laws,
Of the Federal Rate Regulation Laws,
of the Federal Antitrust Laws, and
other Federal statutes too numerous to
mention, carry with them in nearly
every instance a liability to punish
ment for violation OF some similar
State statute in the jurisdiction where
the offence is committed. In the
language OF this Court in COuHselndn
4. hitchcock, supra, at page 56+, the
pardon offered 20 plaintiff-in-error
could not and would not prevent the
use of his testimony TO search out
other testimony to be used against
him or his property in a criminal pro-
ceeding in such Court. 1t could not
prevent the obtaining and use of wit
nesses and evidence which should be
attributable directly TO the testimony
he might give under compulsion and
on which he might be convicted, when
otherwise, and il he had refused TO
answer, he could not possibly have
been convicted" This being so, and
the pardon having no effect in the
State Courts, IL seems clear that the
witness has no adequate protection
that can be said to be an equivalent
I Of his constitutional privileges.
In the case ut bar the newspaper
articles in question are, upon their
face. libellous, and in the State of New
York the publication of libellous ar
ticle is a crime New York Criminal
Code and Penal Law, Section 1340)
The expresses purpose Of the pardons
in question Is 20 compel these plain
titrs-in-error 20 testify as 10 their con-
nection with the securing, writing
about or assisting in the publication
Of the information so incorporated in
the aforementioned article" Record,
p. i5). And TO compel them 10 so tes-
tify subjects them TO the possibility Of
a criminal prosecution in a jurisdiction
where the profered pardon is Of no
validity and affords no protection
whatsoever.
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
WOULD EXCEED POWER
OF THE ENGLISH CROWN

a pardon in the absence of any evi--
denee that the person pardoned had
been guilty of any offence.
All authorities are in accord on the
proposition that pardon is an act Of
grace, an exercise of clemency and
mercy partaking Of the attributes OF
Deity.
1t can hardly be argued that the offer
Of a pardon for any unknown offence
that man may possibly have com
mitted, and the enforced acceptance
of the same by the person TO whom 1t
is isued, in order TO compel him to
testify in violation OF his constitu-
tional privilege, because the United
States Attorney desires TO use him as
a witness, is an act Of mercy. or an ex
ercise Of clemeney or that II has any
attribute Of Deity.
In cUoTy. reported case IN rhlch the
PRESIDENTS poiocr 10 grant p0rdOns has
been iHUOiUcd. the crtstcHce of the Of
fence pdrdoHcd tCds either proven or adj
iaittCd
Mr.. Wise reviewed all the principal
ases in which this question has been
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

But a state of law such as would re-
suit from upholding the decision OF
the Court below in this case would
place the grand jury at the disposal OF
tho President Of the United States and
of the officers Of his cabinet. Instead
of serving as barrier against execu-
tive oppression it would become, with
its almost unlimited inquisitional
powers, an instrument for suppressing
uublic discussion. Not only would the
functions of the grand jury be thus
perverted. but the executive would
also in practical effect be armed with
one of the most summary powers that
can be exercised by the judicial branch
the power to punish for contempt.
When such a case as we have been
supposing arose and the editor or re-
porter refused to state from whence
his information was derived he would
be presented by the grand jury as for
contempt, and in such a case, so far
as we can see, the Court would practi-
cally be without any discretion in the
premises, and would be obliged to re-
quire the witness TO answer the ques-
tions under penalty of going to Jail if
he refused to do so, and staying there
until he should betray the confidence
that had been reposed in him, and, il
he had acted conscientiously in pub
fishing facts concerning misfeasance in
Office of which he believed the public
ought TO be informed, until he should
also betrsy the public interest, and so
become unwillingly an agent for help
ing TO conceal rather than TO expose
and criticise wrongdoing in Office.
In such event the United States At
torneys in the several districts would
be without power TO exercise any in
dependent discretion or 70 temper
what they might know TO be OPP
pressive and personal motives Of de-
partment officials. Section So of the
Compiled Statutes of the United
States provides as follows:
"Thc Attorney General shall exer-
else general superintendent and di-
rection over the attorneys and mar
shals of all the districts in the United
States and the Territories as TO the
manner Of discharging their respective
duties; and the several district attor-
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

The attempted exercise OF the power
under such circumstances is an usurpa-
tion of a power not granted to the
President; II is no more and no less
Than attempted legislation. by him, of
an immunity under the guise of an
exercise Of the pardoning power. The
action is lacking in every element OF a
pardon.
This court in constituting the mean
ing of the Presidents power 10 grant
reprieves and pardons in the case Of
Lr pQrtc Wells (iS How, 30t-5ll) said (:
at meant that power was TO be used
according to law; that is, as II had been
used in England and these states when
they were colonies; not because II was
= prerogative power. but as incidents OF
;he power 70 pardon particularly when
the circumstances Of any case disclosed
such uncertainties as made 1t doubtful
II there should have been a conviction
OF the criminal, or when they are such
as to show that there might be miti-
cation Of the punishment without les
sening the obligation Of vindicatory
Justice. Without such power OF
clemency, 10 be exercised by some de-
partment or functionary Of govern
lnent, it would be most imperfect and
deficient in its political morality, and
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

For the consideration of these propo-
sitions we must have reference to the
applicable provisions of the Consttu-
ton. By Article ii, section z, OF the
Constitution, the President shall have
power to grant reprieves and pardons
Tor offences against the United States,
except in cases of impeachment"
The above quoted provision OF the
Constitution comforting power upon the
President TO grant pardons for offences
against the United States" means Just
what il says-no more, no less. There
must be an offence before he can grant
p pardon. lie cannot by his ipse diXit
create an offence in order TO grant a
pardon. lie cannot surmise, speculate
or guess that some person may have
committed or taken part in an offence
against the United States and then
issue pardon to the person who he
assumes may have committed this i'm
aginary offence. What is the Offence"
for which he issues this alleged par
don? Until the offence exists he is
powerless 10 act. And If the person
sought to be pardoned has not been
convicted Of, or admitted that he has
committed, any offence against the
United States. how can the President
exercise the power? There seems to be
hut one possible answer 10 these ques-
tions. And as the plaintlf-in-errOr has
not been convicted Of any offence, and
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
OF THE
CONSTITUTION IGNORED

rant Of pardon tolled the privilege Of
the plaintifs-in-eTro against being
witnesses against themselves. Such
holding confers upon the President
power not embraced within any power
delegated 10 him by the Constitution.
The effect of such decision IS TO say
THAT the President shall have power
to grant immunity TO witnesses" And
if he may grant general immunity 10
one witness, he may grant general
immunity 10 a group or class OF wit
nesses go OPP. Atty. Genl., $3.50. But
the holding goes even farther; 1t not
only asserts that the President, has
the power to grant immunities but that
he also has the power TO compel per-
son, to whom he offers such immunity,
to be a witness against himself. Can
it be argued that the trainers Of the
Constitution intended to grant any
such powers TO the President Does
not the exercise of such powers fall
clearly within the functions of the leg
islative and as clearly outside OF the
functions of the executive or judicial
branches of the Government? Isn't
the issuance of an unwarranted pardon
by the Executive and its enforced ac-
ceptance by judicial coercion an un-
warranted assumption, by these two
branches of the government, of power
clearly legislative? Isn't is an assnmp-
tion of legislative powers? If such is
not the case what was the necessity of
the Chief Executive of this nation rec
ommending to Congress the enactment
of the Immunity Statute which was
under consideration in the case of
Broicn q. Waller (l6i L. S, 59D, and
Of recommending its amendment, sub
seouent to Judge Humphreys decision
in the so-called Beef Trust Case?
Omitted states s. Armour ~ a., if-
Fed. S0S.I
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
NO POWER TO PARDON
CONJECTURAL OFFENCES

mercy. The extension Of the m..,..
OF the word Offences" so as 10 ins,rx
purely hypothetical offences obv;o".ls
has no connection with the exereixse...
the divine quality of mercy.
II would appear therefore th,
whether we depend upon an examIss
ton of the mere language Of the clss,.
or upon reference TO the purpose q.
which 1t was inserted in the Consists.
ton the result is conclusive aes;.s.
the validity of the proffered wsrrr,
that is in question. -
Let there be assumed, however y,
the purpose Of argument, that whiss
the plaintiff-in-error does not adm,
but on the contrary most emphaticaI,
denies, namely, tina: there is III,
choice open 10 the court here betw,s,
two permissible constructions OF ~,
word Offences" one of which wsrl,
conine il TO demonstrated acts and n.
other of which would extend il 10 can.
jectural events. II there is such
choice then the plaintiff in error ia.
vokes the aid Of the familiar canon =,
construction that that interpretatioa
must be chosen which is most in hsr.
mony with the general tenor of ths
Constitution and the spirit of our
democratic institutions, and what We
have to say under the next point be.
comes pertinent and material. h.
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

The brief Of Solicitor General Jonn
w. Davis, on behalf of the United
States government, was comparatively
short. Following are the main points
presented by him.: -. ,s :,
The question in these cases IL
whether the tender TO a witness oi
warrant of pardon by the President ior
oTences against the United States, OF
which the witness has not been con-
victed and which ne does not ADMIT,
hos the effect. if he does not accept
the pardon, OF preventing him from
invoking the constitutional privilege Oh
refusing to answer questions on tne
ground that the answers might tend 70
incriminate him. so,,
Tbe President has the potoer 10 pardon
a person for an offence o. Uhich ne hos
NOS been corvtcted. ,,;,
In England. as appears by the oplh-
ion of the court below IN these oases'
the mower of the Crown to grant
pardon before convection was leos
rized at an early date. Lord Coke says
axnresslv that the royal prerogative
extended as we'll before as after at
tainder, sentence OF conviction in'''
233, Oh. los, of Pardons.
In this country from the very hLse
Presidents have exercised not only the
power to pardon in specific cases be-
fore conviction, but even TO grant gen
erai amnesties. The instances are col p
iected in an opinion of President Tar,
while Solicitor General, Opinions OF the
Attorney General, Vol. Xxx, PIP. 1873, ct
seq And in Ia pdrte Garland, a.
{. S. q WALL 1888, while the decision 10 n
lid not necessarily depend upon the
validity of a pardon which the Presi,
dent had granted Garland, who had
never been Convicted, Mr.. Justice Field
in delivering the opinion of the court.
aid that the constitutional power oS OF
the President to grant pardons Up. Sovl
extends 70 every offence known to the
law, and may be exercised at any time
after its commission, either before
legal proceedings are taken, or during
their tendency, or after conviction ana
judgment. ia,
proval I'm the case OF Brown u.s. Walker