This is an original petition in this court for a writ of habeas corpus by Philip Grossman against Ritchie V. Graham, Superintendent of the Chicago House of Correction, Cook County, Ill. The defendant has answered the rule to show cause. The facts are not in dispute.
On November 24, 1920, the United States filed a bill in equity against Philip Grossman in the District Court of the United States for the Northern District of Illinois, under section 22 of the National Prohibition Act (41 Stat. 305, 314, c. 85; Comp. St. Ann. Supp. 1923, § 10138 1/2k), averring that Grossman was maintaining a nuisance at his place of business in Chicago by sales of liquor in violation of the act and asking an injunction to abate the same. Two days later the District Judge granted a temporary order. January 11, 1921, an information was filed against Grossman, charging that after the restraining order had been served on him, he had sole to several persons liquor to be drunk on his premises. He was arrested, tried, found guilty of contempt and sentenced to imprisonment in the Chicago House of Correction for one year and to pay a fine of $1,000 to the United States and costs. The decree was affirmed by the Circuit Court of Appeals, Grossman v. United States, 280 F. 683. In December, 1923, the President issued a pardon in which he commuted the sentence of Grossman to the fine of $1,000 on condition that the fine be paid. The pardon was accepted, the fine was paid and the defendant was released. In May, 1924, however, the District Court committed Grossman to the Chicago House of Correction to serve the sentence notwithstanding the pardon. United States v. Grossman, 1 F.(2d) 941. The only question raised by the pleadings herein is that of the power of the President to grant the pardon.
Special counsel, employed by the Department of Justice, appear for the defendant to uphold the legality of the detention. The Attorney General of the United States, as amicus curiae, maintains the validity and effectiveness of the President's action. The petitioner by his counsel urges his discharge from imprisonment.
Article 2, § 2, cl. 1, of the Constitution, dealing with the powers and duties of the President, closes with these words:
'And he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.'
The argument for the defendant is that the President's power extends only to offenses against the United States and a contempt of court is not such an offense, that offenses against the United States are not common-law offenses but can only be created by legislative act, that the President's pardoning power is more limited than that of the king of England at common law, which was a broad prerogative and included contempts against his courts chiefly because the judges thereof were his agents and acted in his name, that the context of the Constitution shows that the word 'offenses' is used in that instrument only to include crimes and misdemeanors triable by jury and not contempts of the dignity and authority of the federal courts, and that to construe the pardon clause to include contempts of court would be to violate the fundamental principle of the Constitution in the division of powers between the legislative, executive and judicial branches, and to take from the federal courts their independence and the essential means of protecting their dignity and authority.
The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statemen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.
In a case presenting the question whether a pardon should be pleaded in bar to be effective, Chief Justice Marshall said of the power of pardon (United States v. Wilson, 7 Pet. 150, 160 [8 L. Ed. 640]):