Evening star., 1924-05-15
Order Arrest, Saging Presi-
dent May Not Extend Glenn
ency in Contempt Action.
EXECUTIVE EXCEEDED
AUTHORITY, COURT HOLDS
Insist Jurists Must Punish Those
Who Disobey Commands or Be
come Impotent.
BY the Associated Press.

CHICAGO, May 15.-The right "t
the President of the United states u
pardon in civil contempt case was
denied today in an opinion signed by
Federal District Judges George A.
Carpenter and James A. Wilkerson
in the Phillip Grossman case, which
was considered before the Daugherty
investigating committee.
The opinion held that Grossman
should be taken in custody on sen
tence of a year in Jail for contemp;
decreed by former Federal Judge X
NJ. Lands. Grossman was sentenced
for contempt in prohibition case.
Grossman never had been taken
into custody when the PRESIDENT.
pardon came
To allow such power in the Execu-
tive is to strike a death blow at the
independence of the judiciary" said
Judge Carpenter in his opinion.
The power to punish for contempt
is 81, inherent in, and essential tc. tn
the President is allowed to substi-
tute his discretion for that of tho
courts in this vital matter, then truly
the President becomes the ultimate
holding would be a distortion of that
cardinal principle of American insti-
tutlons that the executive, Legislative
and judicial branches of governmeEi
are coordinate and proudly indepenl-
ent.
Orders Grossman Arrested.
I'VE are of the opinion that under
the Constitution the Executive can
not draw to himself all the real ju-
dicial power of the nation by con
trolling the inherent and essential at
tribute of that power-the AUTHORITY
to punish for disobedience of the Or
ders of the court
The motion of the defendant, baseC
upon the presidential pardon, to mod
ny the order of this court so as /"
eliminate the Jail sentence is denied
and the marshal is ordered to TAX,
the defendant into custody; and al
order of commitment may ISSUE"
The Constitution gives the Presi-
dent power to pardon "offenso.
against the United States" only, AMI
there are no offenses against til"
United States save those declared Il
be such by Congress" declared Jud2,-
Carpenter. Contempt cases, Therefore
he held to be outside that category.
The President derives his pardon
ing power from Article II, Section
Q) of the Constitution, which pro-
vides: The President . shall haya
power to grant reprieveS and pardonS
for offenses against the United States.
except in cases of impeachment
There is no federal common lew
There are no offenseS against the
United States, save those declared t.
be such by Congress. The people
could counterfeit with impunity Were
it not for legislation to the contrary.
Murder on the navigable waters OF
the United States might be pastimo
We're it not for congressional action"
The two judges gave separate
opinions but concurring in effect.
The opinions of the Attorneys Ger
eral of the United States in 1S41, ISL
and 1852 as to the Presidents power
of pardon were declared by Judg.
Wilkerson to have been based upon
an erroneous assumption that thr
President stood in a somewhat SINH
lar position toward the United States
courts as the King of England toward
the English courts.
1T was well said that the power 20
tax is the power to destroy; 1t is JUS
as true that the power to Lardon for
contempt is the power to DESTROY
judicial authority" said Judge viii
draw an artificial distinction based
upon the method which must be en-
ployed or the form of the mandaIe
which must be used in dealing with
distractions of judicial power AS
was stated by Chief Justice White IN
United States, the test Is
the character of the act and its direct
tendency to prevent and obstruct the
discharge of judicial duties
Principle Mt Issue.
Judicial authority is DESTROYED
and the function of the courts as the
guardians of the Constitution is i'm
paired in just the same way by an
act in defiance of the courts pro
hibition as by the refusal to perform
an act until compelled by the courts"
Judge Carpenter made it clear that
the question to be determined
has nothing to do with the propriety
his right, to pardon. 1T is no
answer" he said. ito say that the
President would not abuse the pow
er If it were so extended. The clear
constitutional separation of depart
ments was not based on possibili-
ties"
I'VE believe" he explained, that
contempt is a genus of open disre-
gard for orders of the court, and
that, whatever the species or variety.
defiance is involved. and that in no
case, in the absence of clearly ex-
pressed powers to the executive, can
pardon be granted to the Offending
party If punished"
Referring to the theory that the
President should be vested with an
thority to pardon offenses against
laws which it is his duty to execute
Judge Carpenter said that "the ex-
ecutive is not charged with enforcinp
obedience to the orders of the court
this duty being lodged exclusively
with the court itself. The President.
We are sure, would hesitate to par
don offenders punished for contempt
of the Senate or House of Repre-
sentatiyes.
Contempt No Crime.
'It has been urged that the Presi-
dent of the United States in the past,
under the advice of the various At
torneys General has exercised the
power to pardon for contempt. All
we have to say is that time
and acquiescence cannot consecrate a
wrong. Criminals surely have no
vested rights in pardon privileges,
and construction of the Constitution
by the department usurping a power
cannot control.
"Prima facie such pardon power
conflicts with the independence Of the
judicial branch of the government.
The assumption of s,Och power by the