New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-02-22
The Court Pins Prosecutor Down to | his
Point in Arguing for the Punish
ment of Tribune Men.
CASE OF GEN. GARLAND IS QUOTED
Counsel for Two Who Refuse to Reveal oource OF
News Denies Precedent-fiods Pardon Inn
plies Conviction of Crime.

Tho case OF the two members OF Inc
r..i,,,,e STAFF. George Burdick and
William L. Curtin, charged with con
,ornnt Of court for refusing to disclose
before the federal grand jury their
source Of information for the Littauer
o,a Hcitmever customs stories pub
,sbod exclusively in this newspaper
was argued yesterday before Judge
learned Hand. in the United states
District Court, by Frank T. Car
starphcn. Assistant United States Dis
trict Attorney. for the prosecution and
Henry II. Wise. former United states
Attorney. for the defence.
The case centred on whether, to con-
ceal their source Of news the defend
ants could plead their constitutional
right not to be compelled to incrmi-
,ate themselves. and could decline to
accent the anticipatory pardon from
President Wilson by which the United
states Attorney sought to give them
immunity from any penalty to which
their testimony might subject them
Turns on Wilson's Pardon.
Judge Hand ruled, in opening that
the main issue was the validity OF
Presidents pardon offered under these
circumstances. and whether this would
oct &C q legal bar to all further prose-
cu,ion against the defendants in the
matters in which they were called upon
10 testify.
After some demur by Mr.. Car
.tarnben both sides agreed TO TINS the
defence LAYING stress on the point tha'
,.,,oes the pardon were found valid the
defendants were free to avail thehl-
solves of their constitutional privilege
despite the pardon, without mourning
contempt of court.
After hearing argument Judge manu-
ssid he would announce his decision
rext week. He made the comment thdu
"it doesn't make any difference whlch
WAY decide" since he assumed that
either side would appeal to the Su-
IRENE Court. He intimated that
should he decide for the prosecution ne
would fix fine as the penalty, but eX-
tend the order as to when the de1end-
ants should give their answers or be
come liable 10 the penalty until maj
adjudication had been made.
In his argument for the defence MI
Wise. after pointing out that the de-
PENDANTS both refused to accept the
nardons. and therefore they had no ef-
feet on their constitutional right
quoted the American and English En-
cyclopedia OF Law, saying:
ct is a settled rule that pardon
partakes Of the nature OF deed that
20 its validity and operative effect de-
livery is essential, and that the dellV-
cry is not complete without acceptance
Since delivery and acceptance are es-
eential. the instrument may be re-
iected by the person TO whom 1t is ten
dered. and under such circumstances
there seems TO be no judicial power 10
force the pardon upon him
- "'The completed act Of pardon exists
only when the instrument has been de-
uvered and accepted. Until such de-
livery and acceptance all that may
have been done by the Executive is a
mere matter Of intended clemency'
which cannot operate in favor OF the
offender and which may be freely re-
voked or cancelled
"Mr Carstarphen says we received a
pardon" he continued. putting down
his authority from which he read. He
must have been using the word re
ceived' in a legal meaning, not as q
statement Of fact, for this record is 50
plain that there can be no question
about il that we did not receive any
y ,rdon in the meaning that we took it,
We didn't take it, We refused it. We
declined il.
when the pardon was handed to Mr.
Curtin he said Have l a right TO re-
fuse the PARDON That was followed
by his request TO be permitted to see
his COunSel, ana ne was asked num-
her Of questions before he was per-
mitted 10 see his counsel. and in an
swer 10 these questions this was the
attitude Of the prisoner: In payment
for that / am to surrender my source
of information? l no longer can an
swer that il would tend to incriminate
me? Is that the idea?'
Then he was told to go out and talk
with counsel. and was told 10 take the
warrant for pardon with him. He said
4 will take your word for II that my
taking that does not mean that / ac-
cept it, And he is asked why he took
IL in his hand as If man there in that
grand jury room, without any one to
advise him. when the District Attorney
walks up to him and hands him the
paper. naturally would not take hold
Of It,"
Il don't think his physical receipt Of
II in his hand is an acceptance" said
the court. They won't press that. A
nan. OF course. in taking il mus. have
some competent information TO know
that it is good"
The court then asked Mr. Car
starphen IL the act Of taking il showed