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

None Of these privileges have been
accorded TO the plaintiffs-in-error; yet
Of necessity they have been found
guilty of "dA offence against ne
United Stdfcs - otherwise there cclid
be no pardon. Our argument under
Point " has established the necessity
for the existence of an offence ana an
offender before the pardon can issue.
II may be argued that pardon obiter-
ates the offence. But such argument
fails TO meet the situation. II is true,
according to the authorities. that the
pardon does obliterate the offence; out
that is where the offence exists; here
we have the situation where by the
nardon the President attempts TO create
the offence which st the same time he
seeks 70 pardon. IL cannot be logically
argued that the offence is born and eX-
pires in the same instant. For, that
being so. there is no offence to pardon.
There must be period between the
creation and the humiliation of the
offence. During this period the plain
tiF-in-error has been convicted OF an
Offence against the United States"
without the benefit of any Of the rights
assured to him by the above quoted
provisions of the Constitution. The
only possible theory upon which the
Court can hold that plaintifs-in-error
must testify is that the pardon has
operated. II could only operate where
there was an offence against the United
States: and, as hereinbefore argued,
there being no. evidence of any such
offence, its existence must have been
created by the instrument which also
obliterates it. There is no escape from
this conclusion, which brings us 10 the
above Tcductio cd obSurdGnl"
We contend, in the next place that
the learned Court below erred in hold
ing that the offer or tender Of the war
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

Taking up ms next proposition, MT
Wise argued; Under any possible cir
cumstanees the pardon is utterly in
valid in that it is not $50 broad as to
have the same extent in scope and ef-
feet" as the constitutional privilege Of
the plaintiffs-in-error Same case,
page 5s5.)
Under no possible construction can
the pardon in question be said TO pro-
tect the witnesses against prosecution,
conviction and punishment for offences
which they may have committed
against the State of New York or any
other State. The learned Court below
in its opinion seems to assume that
this contention is disposed Of by the
decision OF this Court in Broom -
Walker (161 L, :, SD but such rs
not the case. In that case Brown had
been called as a witness before the
grand Jury, and upon being asked GER
tain questions he declined to answer
asserting his constitutional privilege
against determination. The ques-
tons propounded TO him related TO
certain payments in the nature of re
funds or commissions upon certain
SHIPMENTS of freight. But at the time
of so refusing the Act Of Congress Of
February II, 1898, c. SO, q Stat, 443,
was in effect; and that statute provided
that "no person shall be excused from
attending and testifying or from pro-
/ ducing books, papers, tariffs, contracts,
agreements and documents before the
/ Interstate Commerce Commission, or
/ in obedience 10 the subpoena of the
/ Commission, on the ground
or for the reason that the testimony
or evidence, documentary or otherwise,
required of him may tend to Grim
mate him or subject him to a penalty
or forfeiture. But no person shall be
prosecuted or subjected TO any pen
atty or forfeiture for or on account
Of any transaction, matter or thing,
concerning which he may testify, or
produce evidence, documentary or
otherwise, before said Commission. or
in obedience 10 its subpoena, or the
subpoena of either of them, or in any
such case or proceeding" In view of
this immunity statute this Court held
that the protection % the witness was
as broad as his constitutional privilege,
and he was accordingly directed to an
swer the questions propounded to him.
This decision was upon the theory that
by the Sirfh article Of The Constitution
the immunity statute in question was
"thc supreme law Of the land,' and
that the immunity thereby granted ex-
tended "to any transaction, matter or
thing concerning which he may testify,
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
POINTS MADE BY
SOLICITOR GENERAL

1s1 u. s. sci, both in the prevaiiing
ani,ion IN 60l) and in the dissenting
opinion by Mr.. Justice Field Up. 6Ssl;
In tho constitutions of some OF tne
c.atos tho mower Of the Governor 10
e,rart nardons is. expressly limited by
The words latter conviction but IN the
States in which this limitation IS not
contained in the constitutions the
Governor may pardon before conVic-
onrdor NOV bs granted for an or,
fence tohich has neither been dd""''u
nor proved. ~. rardon
cannot be granted as hcensea 40 ~
luture misdoing; for that wouiu, -,
effect, be an invasion OF the iegis.a.,,o
power to render lawful IN 'he
that which is now unlawful
But the pardons involved IN tne Ease
at bar do not relate TO future oHsn s.,
srror have Committed or may ha'e
committed. or taken part in"
II ia we'll settled that pardon may
ba Granted before conviction, and mere
ia no authority whatever which limits
The exercise OF this power to cases IN
Srb;cb the person pardoned has con-
yossod his guilt; the pardon may be
oronted even though ne denies the Of
fence. Indeed, a belief in the inn no !.
cence of the person pardoned Is ths
chief reason for granting pardons oe-
fore. as well as after, conviction,
Ard il is vet more certain that
person may be pardoned for an offence
pp, J'1 has not been proved. Saying that
pardon can be granted only where here
tbero is proof that an offence has oeen
committed by the person pardoned IS
equivalent to saying that a pardon can
not be granted until the person par
d don has been convicted, for It .,s can !.
not be said, legally speaking, that ,s,i z
nerson has committed an offence until
he has been convicted Of that offence.
II is submitted that an acknowl.
edgment by the person psrdoned that
his answer will tend to in s nsr
don. without any other proof of the
offence or Of his connection with the
offence.
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

vas granted by Judge Hand pending
tho determination Of the appeal.
Al that time Henry W. Sackett, who
has been the general counsel Of The
Tribune for many years, was abroad
His firm had retained as special coun-
sel 20 protect the interests Of Messrs.
Burdick and Curtin former United
States Attorney Henry A. Wise, who IS
probably rs well acquainted with the
normal workings OF federal grand
lures as any living person. Briefs
were submitted 20 the court yesterday
both by Mr.. Wise and Mr. Sackett on
behalf Of Messrs. Burdick and Curtin,
as well as by Solicitor General DAVIS
for the government. Mr.. Wise devoted
his brief chiefly 20 the contentious
that the President was exceeding has
constitutional power IN the making OF
these pardons; that they could not be
effective without acceptances; that the
refusal of witness 10 answer ques-
lions on the ground that he might GRIM
mate himself was not admission or
proof that a crime had been com
rnitted: that the decision of the court
below was equivalent 20 a conviction OF
Messrs. Burdick and Curtin without
their constitutional right Of trial by
Jury and that the pardon was not the
equivalent Of their constitutional right
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

yaydon mag be grdFted for INC pur'
rose Of on Ord.HG tmTnuhuD JTo" P'Oo0
c1Ition 20 q tCttneSS. ~
These pardons were granted, as the
recitals therein show, Tor the purpose
of making available the testimony oL
the plaintiffs in error, notwithstanding
their constitutional privilege, by al
fording them absolute immunity
against future prosecutions Tor any
past offence concerning winch they
may be questioned, and 1t is argued
that the exercise of the pardohing
mower Of the President for this pur-
pose amounts to usurpation or legis-
latiye functions.
II is true that il is within tho pow
ers of Congress to exact laws securing
TO witnesses immunity from prosecu-
ton in lieu Of the constitutional pro-
hibition against compelling incrlmlnat-
ing testimony. In Brotcn o. Wdikeri
l61 U. S. sol, wherein stature oil ms
kind was upheld. Mr.. Justice Brown, IN
delivering the prevailing opinion, saic
Up. COL:
"The act OF Congress in question
securing TO witnesses immunity from
persecution is virtually an act Of gen
eral amnesty, and belongs TO Il class
of legislation which is not uncommon
either in England q Taylor on Evi-
dence, Sec. 1855, where large number
of similar acts are collated), or in this
country. Although the Constitution
vests in the President power 20 grant
reprieves and pardons for offences
against the United States, except in
cases Of impeachment this power has
never been held 70 take from Congress
the power to pass acts of general
amnesty"
But the exercise Of this power by
Congress can nave no effect in limit
ing the constitutional power of the
President to grant pardons. The Presi-
dents power Of pardon sis not subject
20 legislation" and Congress can
neither limit the effect of his pardon,
nor exclude from its exercise any class
Of offenders" United states q. hieig,
l3 Wall. 12S, 14l. IL cannot "be inter
rupted. abridged, or limited by any
legislative enactment" The Laura, II
U. S. All, Ala. Similar language is en-
ployed in Er pdrte Garland, ( Wall, $50.
p. $50
Since Congress cannot restrict the
power, and since the Constitution i'm
pv5es no limitation upon the exercise
of the power. except that cases of i'm
parchment are excluded, il follows
that. with this single exception, the
power is plenary and may be exercised
upon any ground, and for any purpose,
which the President may regard as
sufficient to call for its exercise.
And. since the Constitution which
confers this power upon the President
also provides that "he shall take care
that the laws be faithfully executed"
il seems that there can be no question
but that the President may extend i'm
munity TO witnesses by the exercise Of
the power to pardon.
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

Nr. Wise's first two points were de-
voted TO the propositions, hrst, tnRV
the proceeding before the grand jury
was a "criminal case" within the mean
ing Of the Fifth Amendment 20 the
Constitution, providing that no person
shall be compelled IN any criminal
case TO be a witness against himself,
and therefore that MessrS. Burdick and
Curtin were witnesses in criminal
case; and, secondly, that in such cir
oumstances these witnesses had the
absolute right 10 decline TO answer the
questions propounded 20 them when
they stated upon their oaths that they
believed that if they did so It might
tend to incriminate them. Mr.. WISE
cited authorities 20 the effect that II
in such a case the witness said upon
his oath that his answer might tend
10 criminate him, it must rest with
him alone, and "the Court can demand
no other testimony of the fact"
Mr.. Wise's third point was that the
refusal OF a witness TO answer ques-
lions on the ground that his answers
might tend TO criminate him did not
constitute either an admission or proof
of his guilt of any offence. On this
point. he said. the authorities were
substantially unanimous, and quoted
some OF the highest courts TO such
effect, and also holding that the as
sertion of the privilege by the witness
could not be the basis of any infer
cnce or argument that the witness was
shielding some other person. 1t was
an accepted principle Of law IN the
United States, Mr.. Wise said, that
every man is presumed to be innocent
until he shall have been proved guilty
il, a competent tribunal. This presump-
lion assuredly remains with a man
even though when he is upon the wit
ness stand he invokes his privilege
against eliminating himself. For in
doing so he does not admit that he
has committed crime, nor does he
admit. that he has been guilty of any
offence against the United States,
even though the question which he re-
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
ARGUMENTS MADE BY
MR.. HENRY A. WISE

fuses 10 answer may possibly relate
TO some such offence.
This brought Mr.. Wise TO his most
important contentious, relating TO tne
attempted exercise of the pardonlng
mower bv the President Of the United
States. lie declared that the President
was without power TO issue any pardon
10 Messrs. Burdick and Curtin, and
consequently the warrant rendered was
null, void and of no effect. Following
are the main arguments OF MI wise
brief on this point:
Plaintiff -in-error was witness IN
Criminal case" before the grand jury
and upon being asked certain questions
he refused TO answer and asserted MS
privilege against self elimination.
Thereupon the President affixed his sig
nature to paper by which he appar-
emily purposed to grant unto the PLAIN
tiff-in-error a pardon. And right here
the inquiry arises, For what? The an
swer is found by reference TO the SO
called pardon, which says that plalntli
is pardoned "for all offences against the
United States which he mas
committed or may have committed or
taken part in. in connection with the
securing, writing about or assisting IN
the publication Of the information so
Incorporated in the aforementioned ar
ticle, and in connection with any other
article, matter or thing concerning
which he may be INTERCEPTED IN the
said grand jury proceeding, thereby ab.
solving him from the consequences OF
every such criminal act" The plaintiff
in-error naturally and properly rejected
and refused to accept any such paper.
And his reasons for so doing were
threefold first, because the President
was without power to issue any such
nardon: second. because even had power
existed plaintiff-in-error could not be
compelled TO accept the same, and,
third, because this purported pardon
does not afford paintiff-in-error an
equivalent for his constitutional priv
lege not TO be a witness against him
self
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
MAKES GRAND JURY
TOOLS OF OPPRESSION

neys and marshals are required 10 it
mort TO the Attorney General an &C
count of their official proceedings ana
of the state and condition OF thelI =.
spective Offices. in such time ana rhs ,
ner as the Attorney General may
rect" -
II what we have said be true, ano
we see no escape from the logic OF >.
the result of sustaining the decision
of the Court below in this Instance
would be 10 arm the executive JIah'h
with a most drastic power, woicu' !"
far as can be gathered from the teno,
OF the Constitution as a whole, 10 w.
never intended that the eNecuuN..
should have. II would tend az mo-.
important point 70 break down lh'
senaration of powers between the eN
ecutive and judicial branches OF tne
Government, for which the ConstitH'
tion 40 carefully provides. In this con
nection we beg 20 refer the Court
lts decision i'm the case or hu0oNfh ~.
ThounpsOu 1913 L. =, lbN, Ihc OVD
in that case held that the House
Representatives exceeded the limit "
It's authority and assumed a poNsl
which could properly be exercised onH
by the judicial branch IN Furnishing lns
niaintifF in error for contempt for re.
K,sine 10 obey a SubpGnd dnccs iechn
issued by committee Of the House.
The Court in that case referred 70 tas
undoubted power of the English House
of Commons 10 punish for contempt Y
similar circumstances. But u F
marked that that power of the House
OF Commons was derived from the an
Gent time when the Parliament exeI..
cised the highest functions Of eoSi.
OF iudicature The Parliament, thls
court said, was at that time poo!
which not only enacted laws but sis0
rendered judgment in matters oil Pr,
vate right Up. 1887. II held that .a.
House Of Representatives under oo
Constitution, having had dlhefs"'
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
PRESIDENT CAN GRANT
IMMUNITY IN ALL CASES

Indeed. this has perhaps never been
doubted: il appears that the only ques-
tion that has been made is whether the
mower vested in the President is ex-
elusive. Broom I. Walker. 16l |. =
591, COL.
And. whatever may have been the
view which was at one time taken py
the English judges, there IS now no
doubt but that a witness cannot set up
his constitutional privilege II he has
been pardoned for the offence in regard
to which his. testimony IS sought
Byo,rn a. Walker. 161 u. s., 591. ana
English cases cited Surely it cannot
be true that q pardon will prevent the
invoking of the constitutional privilege
if il is granted on one of the usual
grounds. such as probable innocence,
and not have that effect, but be Invalid,
if that is the very purpose for winch II
is granted.
&c as broad as the protection oforded 0y
the constitutional provision 0gdtNSt COM
pclling person 10 be ,ottness against
himself
The immunity afforded by these par
dons is unlike the immunity which was
held insufficient in C0uhSeimdH g.
Hitchcock. I42 L. S. 547. since. by their
express terms, they grant n full and
unconditional pardon for all offences
against the United States" which each
of tie plaintiffs in error has COM
mitted or may have committed, or TAX
en- part in, in connection with the Sc
curing, writing about, or assisting IN
the publication of the information so
incorporated in the aforementioned ar
ticle. and in connection with any other
article, matter or thing concerning
which he may be Intercepted IN the
said grand jury proceeding, thereby alb.
solving him from the consequences OF
every such criminal act.
The immunity afforded by these par
dons is. therefore, an absolute immun-
ity against future prosecutions for any
offence TO which the required testl-
mony may relate. This brings these
pardons within the scope and effect OF
The later decisions which hold that, if
a statute affords such immunity against
future prosecutions, the witness Will be
compelled to testify BroUn 4. Walker,
1G1 L. : 591: Interstate Commerce
Commission =. Baird, =, 194 I. :. %;
Hale a. HcnkeI. col L. 5. 40; Nelson T..
United states. 20I [. ;. o..
The contention that these pardons do
net afford the protection guaranteed by
the Constitution for the reason that
they do not protect against prosecu-
tions for offences against New York or
any other State is fully met by what
was said in the prevailing opinion IN
BrotCu 4. Walker. / 81 L. s. 59l. 6O6-6OS.
and by the decisions in the cases OF
Hale y. Henkei. 201 L. $. 40, 6S. ana
Nelson .. United states, 20l |. ). ~,
1l6.
In concluding this point Mr.. Davis
argued that the pardons of the Presi-
dent would afford better protection to
the plaintiffs in error than an immun-
ity statute.
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17

ms being 60, it IS 0ppGrent from ne
Enylish decisions that the President ~
attempting 10 grant the pardon involved
~ ne case al bcr eIoeedcd am author
~ eUer exercised b. the English crotcn.
sIn England the Kings pardon must
name the offence upon which II IS IN
tended TO operate except IN cases OF
general pardons and amnesties.
Am. and Eng Ency., Vol, ~, p. BIO.
"In England il appears 20 be the rule
that the King cannot pardon an onenee
without specifically naming II, Tor
pardon BIZ the King without reciting
The offence upon which 1t IS intended
20 operate will be held invalid b. the
eourt. the theory being that the King
was not informed Of the particular OF
sefce Of which the recipient OF the
pxrdon had been convicted
Am. aud Eng Encyp Vol y, PIP.
575-6. g.,
A careful examination Of the English
y.ports prior 20 the adoption OF our
constitution fails 20 disclose any case
IN which tho King ATTEMPTED to grant
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
SAFEGUARDS OF FREE
GOVERNMENT IN DANGER

employe of the United States informs
ton concerning official acts or matter.
pending in any department Of the GOV.
eminent. and IL Is not crime 70 pub.
lish such information innoeently oh.
tanned.
Nevertheless, under Sections 81 and
80 of the Criminal Code OF the United
States, the publication OF any infor.
nation whatever about any Official acts
or matters pending in any Of the de-.
partments of the government would IN
every case. without any conceivable
exception, be matter which the grand
Jury might be called upon to invest.
gate by the United States Attorney IN
any department in which such publ
cation took place because of the possi.
bility that such information nigh.
have been obtained as the result ofa
violation either of Section 81 or Of Sec.
ton 80 of the Criminal Code o. the
United States Therefore, in every
case where information is published
concerning the administration Of the
executive departments OF our govern
ment, unless the information were fur
nished by the responsible head Of the
department, an investigation might be
undertaken by the grand jury at the
instigation Of the United States Attor
ney as to where and how the lnforms
ton was obtained. An objection TO the
jurisdiction of the grand jury would
be as unavalling in every such case as
il is in the present case. The court
would be powerless to inquire whether
the grand jury was in fact acting IN
good faith in the investigation OF a
crime or was being used as an instru.
ment of inquisition at the instance OF
a member Of the Presidents cabinet
for the purpose Of ascertainlng from
what source uncomfortable news was
gathered, so that the person furnishing
the news might be summarlly punished
not by criminal proceedings, but by
dismissal from Office.
Every department Of the Government,
by simply adopting departmental req
ulation similar 10 the following, wnlen
was cited by the United States Attof'
ney in the argument before me court
below, would then be supplied with a
most potent, indeed terrorlSing m
strument for preventing any Of the
acts or omissions of It's officials RON
being made known 10 the public ana
subiected TO wholesome criticism, eN'
cent such acts as the head OF the dt'
partment might voluntarily choose 70
reveal: -, -.
"Customs Regulations, 1905, age
sos. Article 1907; Publishing or Dis-
cnssing Official Matter Making public
official matter, or discussing 1t WIN
persons having no official jurisdiction
over it nor any official connection WIN
the department, without authority o.
the Secretary OF the Treasury, IS aoso-
lutely prohibited.
New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1914-12-17
PARDON ACCEPTANCE
CANNOT BE. FORCED

are not confined 70 the arguments OF
the learned Attorney General for our
authority. For the propositions so
clearly asserted by him were enuncl-
sted as the law of the land by the dis
tinguished jurist whom Mr.. Attorney
General Taney succeeded as CHER JUS
tice.
Chief Justice Marshall. in delivering
the unanimous opinion of the Court IN
that case, said, in addition TO what mas
already been quoted above;
"The Constitution gives 70 the PreS-
don't. in general terms, the poreT 70
otaat TepfieUes and p0rdOnS lof o.
fences uOdinst the United states =
"A pardon is an act Of grace, piooesL,E
Inn from the potCer Entrusted tcith ms
creo,,fjor Of Inc Idics. ichich erempts
rhe individual on ichOn 70 IS OestoWoa
from the punishment the idO mIucIS
Tor a crime he hos committed ,
"A pGrdor - deed TO the vdlidlty OF
,ohicE deiiUsrB 50 essential, ana deHVeTg
IS not complete iCth0ut acceptance. ~
MAJ then be rejected by the person 10
,rh0p, Il Is rendered, and " u DC re-
;scted tCe haze discovered no poVer ~
a court 10 force II on him."-Page lol.
The arguments of Attorney General
Taney and the decision Of the Court IN
the Wilson case, supra, received the
anproyal OF this Court in FIX parte
Wells Us Howard, 300, al Pages 5lo-
81.
In the exercise OF the power in prac-
tically all reported cases it appears to
have been regarded by the donor,
grantor or giver of the pardons IN
question that an acceptance was essen
tial; this is especially so when the
persons to whom the pardons were Of
fered had not been convicted OF an Oh
fence against the United States; =,
The remaining points which Mr..
Wise made in his brief elaborated the
contention that Messrs. Burdick and
Curtin had been deprived OF their
privileges under Articles ' and VI OF
the Amendments TO the Constitution
without due process OF law. Following
are extracts from his arguments on
Al