remit the interests of the custom house officers in a moiety."'80 But the Supreme Court held,1 that it was conceded that "excepting in cases of impeachment and where fines are imposed by a co-ordinate department of the Government for contempt of its authority, the President had the power to remit fines, penalties, etc., of every description arising under the laws of Congress.'

The effect of an unconditional pardon of a person convicted of a felony is a complete restoration of his competency as a witness, notwithstanding the pardon contained the provision that it was given for such a purpose."2 The President may mitigate the punishment of death, by substituting a milder punishment, but he cannot direct that a federal prisoner be admitted to bail, as that is a judicial question."

63

There is some conflict of opinion whether the President has power to pardon for contempt of court. The question has been submitted from time to time to the Attorney-General of the United States and that official has declared the President has such power. A contempt of court having been committed in the presence of the judge of a United States circuit court, the offender was fined in the sum of $400.00. Afterwards a pardon was applied for from the President as a relief against the fine and the question was submitted to the Attorney-General, "whether the executive authority to pardon extended to such cases." That official gave it as his opinion that "there is nothing in the character of this offense which withdraws it from the general 'authority' of the President to grant reprieves and pardons."'65 In another case two defaulting jurors were fined and subsequently they applied to the President for a pardon relieving them from such fine, and the Attorney General held that the President had power to grant it.66

It was later held by that official, that the President could remit fines assessed against those who had been

60 United States v. Lancaster, 4 Wash. C. C., 64.

61 The Laura, 114 U. S., 413.

62 Boyd v. United States, 142 U. S., 450.

63 1 Op. A. G., 213.

64 1 Op. A. G., 213.

85 3 Op. A. G., 622. 66 4 Op. A. G., 458.

convicted of aiding in the escape of slaves from their masters, and the President could also discharge the of fenders from imprisonment.67

All these opinions were approved by Judge Blatchford, afterward a justice of the Supreme Court of the United States. While on the district bench he held that contempt of court is an offense against the United States, and that where a fine is imposed as a punishment for contempt of court, the case comes within the power of the President to pardon.68

These opinions came under review by the circuit court, which held that they were neither "controlling nor persuasive, because they contain no discussions and give no consideration to the controlling fact, which must in the end condition and determine the decision and questions" (p. 457). It was also held that Judge Blatchford had abandoned his decision.

The court said, "Can it be that there is any appeal from the decision of a federal court in a civil action upon the rights of the parties to it, or from the lawful orders it makes to secure those rights to the executive department of the national government? May the President review and reverse or modify the decisions or orders of a court of competent jurisdiction, made in a civil action, to secure or enforce the rights or the legal remedies of the private parties to the suits before it? If, in an action for specific performance, a court orders a defendant to surrender title deeds in his possession, and commits him until he does so, may the Executive review the case, relieve the defendant from imprisonment and thus reverse the effect of the decision of the court, and practically hold that the plaintiff is entitled to no relief? If a defendant in equity or a bankrupt is found to have trust funds in his possession, and is ordered by a court of competent jurisdiction to pay them over to the

67 5 Op. A. G., 579.

68 In re Nulle, 7 Blatchford, 23.

In State ex rel. v. Sauvinet, 24 La. Ann., 119, these opinions and the decision of Judge Blatchford were followed. In ex parte Hickey, it was held: "The governor of a State has power to pardon a contempt committed against a circuit court, and to release and remit the sentence of fine and imprisonment, inflicted upon the of fender." 4 Smedes & Marshall, 751.

cestui que trust, and be committed until he does so, may the executive department relieve from this commitment, and thus make the order and decree of the court as 'idle as a painted ship upon a painted ocean?' If a defendant

in a suit of equity is fined for the benefit of the plaintiff, or is imprisoned to coerce him to obey an injunction, may the President relieve from the fine or imprisonment, and thus render the decision and order of the court nugatory, and the complainant remediless? . (p.

454.)

"If the President has the power to pardon those who are committed for criminal contempts of the authority of the courts, and thus to relieve them from fines or imprisonments inflicted to punish them for their disobedience, this immemorial attribute of judicial power is thus practically withdrawn from the courts and transferred to the executive; for he may pardon whom he will, and he would have the power so to exercise this authority as to deprive the courts of all means to punish for disobedience of their orders. Is there any provision of the Constitution of the United States which grants this inherent and essential attribute of judicial power, or the authority to control its exercise, 'to the executive? Congress has undoubted authority to punish recalcitrant witnesses for contempt of its authority. The offenses of such witnesses are as much offenses against the United States as the offenses of witnesses, juror, or parties who disobey the orders, writs, or processes of the courts. May the President pardon such witnesses who are committed for the purpose of punishing them for the disobedience of such orders and processes, and thus deprive Congress and the courts of the ability to punish for disobedience of their lawful orders and processes? If a court fines or imprisons a juror because he refuses to obey its mandate when summoned, or because he refuses to act when he appears, may the President immediately pardon him, and thus relieve him from all punishment for disobedience of the order of the court? May he pardon all jurors for all disobedience of the mandates of the courts, and thus practically deprive the courts of the power to summon jurors? If riotous persons are fined or imprisoned for disturbing, defying,

and preventing the proceedings of a court, may the President pardon them, and thus deprive the court of the power to continue its sessions, and to discharge its functions? In other words, has the executive the power, if he chooses to exercise it, of drawing to himself all the real judicial power of the nation which the Constitution vested in express terms in the courts, by means of his supreme control of the inherent and essential attribute of that power,-the authority to punish for disobedience of the orders of the courts? These questions seem to suggest their answers (pp. 456, 457).

"Proceedings for contempt are of two classes-those prosecuted to preserve the power and vindicate the dignity of the courts, and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce. (p. 458.)

"An order committing a defendant for contempt in refusing to pay a fine or to obey an order made in a civil suit for the purpose of enforcing the rights and administering the remedies of a party to the action is civil and remedial, and not criminal, in its nature; that it does not fall within the pardoning power of the President because it is not an execution of the criminal laws of the land; and that it is always within the power and subject to the modification, suspension, or discharge of the court which has made it, and of that court alone, either in the original case or in an appropriate auxiliary proceeding" (p. 453).69

This decision proceeds upon the theory that a fine or a sentence of imprisonment imposed in a civil action as a punishment for violating an order or judgment of a

69 In re Nevill, 117 Fed. Rep., 448.

court is a civil proceeding and consequently not within the pardoning power of the President.

The President can pardon only for offences committed against the United States. How can a judgment of a court in a civil action against one who has violated the order of the court be held to be such an offense? There is a wide difference between such a proceeding and that, for example, where a person has been convicted of violating the criminal statutes of the country. To rob the mail, or burglarize a post office, or violate the national banking laws is a criminal offense against the United States, and in all such cases the power of the President to pardon the offender is unquestioned, but the power cannot be extended to include one who has been sentenced to pay a fine or be imprisoned as a punishment for violating the order of a court in a civil proceeding. The offense in such a case is not an offense against the United States and consequently the President has no authority over it.

In In re Debs, Mr. Justice Brewer said, "A court enforcing obedience to its orders by proceedings for contempt. is not executing the criminal laws of the land, but only securing to suitors the rights which it has adjudged them entitled to.' 769a This was the ancient doctrine and it has not been changed by any modern decision.

It is not within the President's power to remit a judg ment obtained against a surety on a bond rendered in a criminal case in the courts of the United States.70

Except in cases of Impeachment.-The President in cases of impeachment cannot pardon. The judgment in impeachment is removal from office and disqualification to hold and enjoy any office of honor, trust, or profit, under the United States.71 It might happen that some officer would be impeached and judgment rendered against him, whom the President did not wish to see punished, and if he had the power of pardon in such cases he could pardon him and then reappoint him to his position and defeat the action of Congress.

Mr. Tucker, in commenting on this clause, said: "The 69a 158 U. S., 564, 596.

70 11 Op. A. G., 125.

71 Art. 1, sec. 3, clause 7.