The Constitution of the United States of America: Analysis and Interpretation Part 78

By section 67 of the Organic Act of April 30, 1900,[84] the Territorial Governor is authorized "in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, [to] suspend the privilege of the writ of _habeas corpus_, or place the Territory, or any part thereof, under martial law until communication can be had with the President and his decision thereon made known." By section 5 of the Organic Act, "the Const.i.tution, * * *, shall have the same force and effect within the said Territory as elsewhere in the United States." In a brace of cases which reached it in February 1945 but which it contrived to postpone deciding till February 1946,[85] the Court, speaking by Justice Black, held that the term "martial law" as employed in the Organic Act, "while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals."[86] The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result. "I a.s.sume also," said he, "that there could be circ.u.mstances in which the public safety requires, and the Const.i.tution permits, subst.i.tution of trials by military tribunals for trials in the civil courts";[87] but added that the military authorities themselves had failed to show justifying facts in this instance. Justice Burton, speaking for himself and Justice Frankfurter, dissented. He stressed the importance of Hawaii as a military outpost and its constant exposure to the danger of fresh invasion. He warned that "courts must guard themselves with special care against judging past military action too closely by the inapplicable standards of judicial, or even military, hindsight."[88]

THE CASE OF THE n.a.z.i SABOTEURS[89]

The saboteurs were eight youths, seven Germans and one an American, who, following a course of training in sabotage in Berlin, were brought to this country in June 1942 aboard two German submarines and put ash.o.r.e, one group on the Florida coast, the other on Long Island, with the idea that they would proceed forthwith to practice their art on American factories, military equipment, and installations. Making their way inland, the saboteurs were soon picked up by the FBI, some in New York, others in Chicago, and turned over to the Provost Marshal of the District of Columbia. On July 2, the President appointed a military commission to try them for violation of the laws of war, to wit: for not wearing fixed emblems to indicate their combatant status. In the midst of the trial, the accused pet.i.tioned the Supreme Court and the United States District Court for the District of Columbia for leave to bring _habeas corpus_ proceedings. Their argument embraced the contentions: (1) that the offense charged against them was not known to the laws of the United States; (2) that it was not one arising in the land and naval forces; and (3) that the tribunal trying them had not been const.i.tuted in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in providing for the trial before military tribunals of offenses against the law of war is sufficiently definite, although Congress has not undertaken to codify or mark the precise boundaries of the law of war, or to enumerate or define by statute all the acts which that law condemns. "* * * those who during time of war pa.s.s surrept.i.tiously from enemy territory into * * * [that of the United States], discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, have the status of unlawful combatants punishable as such by military commission."[90] The second argument it disposed of by showing that pet.i.tioners' case was of a kind that was never deemed to be within the terms of Amendments V and VI, citing in confirmation of this position the trial of Major Andre.[91] The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises,[92] thereby, in effect, attributing to the latter the right to amend the Articles of War in a case of the kind before the Court _ad libitum_.

The decision might well have rested on the ground that the Const.i.tution is without restrictive force in wartime in a situation of this sort. The saboteurs were invaders; their penetration of the boundary of the country, projected from units of a hostile fleet, was essentially a military operation, their capture was a continuation of that operation.

Punishment of the saboteurs was therefore within the President's purely martial powers as Commander in Chief. Moreover, seven of the pet.i.tioners were enemy aliens, and so, strictly speaking, without const.i.tutional status. Even had they been civilians properly domiciled in the United States at the outbreak of the war they would have been subject under the statutes to restraint and other disciplinary action by the President without appeal to the courts.[93]

THE WAR CRIMES CASES

As a matter of fact, in General Yamas.h.i.+ta's case,[94] which was brought after the termination of hostilities for alleged "war crimes," the Court abandoned its restrictive conception altogether. In the words of Justice Rutledge's dissenting opinion in this case: "The difference between the Court's view of this proceeding and my own comes down in the end to the view, on the one hand, that there is no law restrictive upon these proceedings other than whatever rules and regulations may be prescribed for their government by the executive authority or the military and, on the other hand, that the provisions of the Articles of War, of the Geneva Convention and the Fifth Amendment apply."[95] And the adherence of the United States to the Charter of London in August 1945, under which the n.a.z.i leaders were brought to trial, is explicable by the same theory. These individuals were charged with the crime of instigating aggressive war, which at the time of its commission was not a crime either under International Law or under the laws of the prosecuting governments. It must be presumed that the President is not in his capacity as Supreme Commander bound by the prohibition in the Const.i.tution of _ex post facto_ laws; nor does International Law forbid _ex post facto_ laws.[96]

THE PRESIDENT AS COMMANDER OF THE FORCES

While the President customarily delegates supreme command of the forces in active service, there is no const.i.tutional reason why he should do so; and he has been known to resolve personally important questions of military policy. Lincoln early in 1862 issued orders for a general advance in the hope of stimulating McClellan to action; Wilson in 1918 settled the question of an independent American command on the Western Front; Truman in 1945 ordered that the bomb be dropped on Hiros.h.i.+ma and Nagasaki. As against an enemy in the field the President possesses all the powers which are accorded by International Law to any supreme commander. "He may invade the hostile country, and subject it to the sovereignty and authority of the United States."[97] In the absence of attempts by Congress to limit his power, he may establish and prescribe the jurisdiction and procedure of military commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed Forces of the United States, and his authority to do this sometimes survives cessation of hostilities.[98] He may employ secret agents to enter the enemy's lines and obtain information as to its strength, resources, and movements.[99] He may, at least with the a.s.sent of Congress, authorize intercourse with the enemy.[100] He may also requisition property and compel services from American citizens and friendly aliens who are situated within the theatre of military operations when necessity requires, thereby incurring for the United States the obligation to render "just compensation."[101] By the same warrant he may bring hostilities to a conclusion by arranging an armistice, stipulating conditions which may determine to a great extent the ensuing peace.[102]

He may not, however, effect a permanent acquisition of territory;[103]

though he may govern recently acquired territory until Congress sets up a more permanent regime.[104] He is the ultimate tribunal for the enforcement of the rules and regulations which Congress adopts for the government of the forces, and which are enforced through courts-martial.[105] Indeed, until 1830, courts-martial were convened solely on his authority as Commander in Chief.[106] Such rules and regulations are, moreover, it would seem, subject in wartime to his amendment at discretion.[107] Similarly, the power of Congress to "make rules for the government and regulation of the law and naval forces"

(Art. I, -- 8, cl. 14) did not prevent President Lincoln from promulgating in April, 1863 a code of rules to govern the conduct in the field of the armies of the United States which was prepared at his instance by a commission headed by Francis Lieber and which later became the basis of all similar codifications both here and abroad.[108]

One important power he lacks, that of choosing his subordinates, whose grades and qualifications are determined by Congress and whose appointment is ordinarily made by and with the advice and consent of the Senate, though undoubtedly Congress could if it wished vest their appointment in "the President alone."[109] Also, the President's power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal "in pursuance of the sentence of a general court-martial or in mitigation thereof."[110] But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place.[111] The President's power of dismissal in time of war Congress has never attempted to limit.

THE COMMANDER IN CHIEF A CIVILIAN OFFICER

Is the Commander in Chiefs.h.i.+p a military or civilian office in the contemplation of the Const.i.tution? Unquestionably the latter. A recent opinion by a New York surrogate deals adequately, though not authoritatively, with the subject: "The President receives his compensation for his services, rendered as Chief Executive of the Nation, not for the individual parts of his duties. No part of his compensation is paid from sums appropriated for the military or naval forces; and it is equally clear under the Const.i.tution that the President's duties as Commander in Chief represents only a part of duties _ex officio_ as Chief Executive [Article II, sections 2 and 3 of the Const.i.tution] and that the latter's office is a civil office.

[Article II, section 1 of the Const.i.tution; vol. 91, Cong. Rec.

4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does not enlist in, and he is not inducted or drafted into the armed forces.

Nor, is he subject to court-martial or other military discipline. On the contrary, article II, section 4 of the Const.i.tution provides that 'The President, [Vice President] and All Civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of Treason, Bribery or other high Crimes and Misdemeanors.' * * * The last two War Presidents, President Wilson and President Roosevelt, both clearly recognized the civilian nature of the President's position as Commander in Chief. President Roosevelt, in his Navy Day Campaign speech at s.h.i.+be Park, Philadelphia, on October 27, 1944, p.r.o.nounced this principle as follows:--'It was due to no accident and no oversight that the framers of our Const.i.tution put the command of our armed forces under civilian authority. It is the duty of the Commander in Chief to appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is also to be noted that the Secretary of War, who is the regularly const.i.tuted organ of the President for the administration of the military establishment of the Nation, has been held by the Supreme Court of the United States to be merely a civilian officer, not in military service. (United States _v._ Burns, 79 U.S. 246 (1871)). On the general principle of civilian supremacy over the military, by virtue of the Const.i.tution, it has recently been said: 'The supremacy of the civil over the military is one of our great heritages.' Duncan _v._ Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210."[112]

Presidential Advisers

THE CABINET

The above provisions are the meager residue from a persistent effort in the Federal Convention to impose a council on the President.[113] The idea ultimately failed, partly because of the diversity of ideas concerning the Council's make-up. One member wished it to consist of "members of the two houses," another wished it to comprise two representatives from each of three sections, "with a rotation and duration of office similar to those of the Senate." The proposal which had the strongest backing was that it should consist of the heads of departments and the Chief Justice of the Supreme Court, who should preside when the President was absent. Of this proposal the only part to survive was the above cited provision. The consultative relation here contemplated is an entirely one-sided affair, is to be conducted with each princ.i.p.al officer separately and in writing, and to relate only to the duties of their respective offices.[114] The _Cabinet_, as we know it today, that is to say, the Cabinet _meeting_, was brought about solely on the initiative of the first President, and may be dispensed with on Presidential initiative at any time, being totally unknown to the Const.i.tution. Several Presidents have in fact reduced the Cabinet meeting to little more than a ceremony with social tr.i.m.m.i.n.gs.[115]

Pardons and Reprieves

THE LEGAL NATURE OF A PARDON

In the first case to be decided concerning the pardoning power, Chief Justice Marshall, speaking for the Court, said: "As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial inst.i.tutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. * * * A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him." Marshall thereupon proceeded to lay down the doctrine, that "a pardon is a deed to the validity of which delivery is essential, and delivery is not complete without acceptance"; and that to be noticed judicially this deed must be pleaded, like any private instrument.[116]

Qualification of the Above Theory

In the case of Burd.i.c.k _v._ United States,[117] decided in 1915, Marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burd.i.c.k, having declined to testify before a federal grand jury on the ground that his testimony would tend to incriminate him, was proffered by President Wilson "a full and unconditional pardon for all offenses against the United States" which he might have committed or partic.i.p.ated in in connection with the matter he had been questioned about. Burd.i.c.k, nevertheless, refused to accept the pardon and persisted in his contumacy with the unanimous support of the Supreme Court. "The grace of a pardon," remarked Justice McKenna sententiously, "may be only a pretense * * * involving consequences of even greater disgrace than those from which it purports to relieve. Circ.u.mstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, * * *"[118] Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burd.i.c.k with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice.[119] In 1927, however, in sustaining the right of the President to commute a sentence of death to one of life imprisonment, against the will of the prisoner, the Court abandoned this view. "A pardon in our days," it said, "is not a private act of grace from an individual happening to possess power. It is a part of the Const.i.tutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."[120] Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful.[121] They seem clearly to indicate that by substantiating a commutation order for a deed of pardon, a President can always have his way in such matters, provided the subst.i.tuted penalty is authorized by law and does not in common understanding exceed the original penalty.[122]

SCOPE OF THE POWER

The power embraces all "offences against the United States," except cases of impeachment, and includes the power to remit fines, penalties, and forfeitures, except as to money covered into the Treasury or paid an informer;[123] also the power to pardon absolutely or conditionally; and includes the power to commute sentences, which, as seen above, is effective without the convict's consent.[124] It has been held, moreover, in face of earlier English practice, that indefinite suspension of sentence by a court of the United States is an invasion of the Presidential prerogative, amounting as it does to a condonation of the offense.[125] It was early a.s.sumed that the power included the power to pardon specified cla.s.ses or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Was.h.i.+ngton in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868, and by the first Roosevelt--to Aguinaldo's followers--in 1902.[126] Not, however, till after the Civil War was the point adjudicated, when it was decided in favor of Presidential prerogative.[127]

"OFFENSES AGAINST THE UNITED STATES"; CONTEMPT OF COURT

In the first place, such offenses are not offenses against the States.

In the second place, they are completed offenses;[128] the President cannot pardon by antic.i.p.ation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the princ.i.p.al cause of James II's forced abdication.[129] Lastly, the term has been held to include criminal contempts of court. Such was the holding in Ex parte Grossman,[130] where Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Const.i.tution. Said he: "The King of England before our Revolution, in the exercise of his prerogative, had always exercised the power to pardon contempts of court, just as he did ordinary crimes and misdemeanors and as he has done to the present day.

In the mind of a common law lawyer of the eighteenth century the word pardon included within its scope the ending by the King's grace of the punishment of such derelictions, whether it was imposed by the court without a jury or upon indictment, for both forms of trial for contempts were had. [Citing cases.] These cases also show that, long before our Const.i.tution, a distinction had been recognized at common law between the effect of the King's pardon to wipe out the effect of a sentence for contempt in so far as it had been imposed to punish the contemnor for violating the dignity of the court and the King, in the public interest, and its inefficacy to halt or interfere with the remedial part of the court's order necessary to secure the rights of the injured suitor.

Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed.

(1787), Vol. 2, 553. The same distinction, nowadays referred to as the difference between civil and criminal contempts, is still maintained in English law[131]." Nor was any new or special danger to be apprehended from this view of the pardoning power. "If," says the Chief Justice, "we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery?" Indeed, he queries further, in view of the peculiarities of procedure in contempt cases, "may it not be fairly said that in order to avoid possible mistake, undue prejudice or needless severity, the chance of pardon should exist at least as much in favor of a person convicted by a judge without a jury as in favor of one convicted in a jury trial[132]?"

EFFECTS OF A PARDON; EX PARTE GARLAND

The great leading case is Ex parte Garland[133] which was decided shortly after the Civil War. By an act pa.s.sed in 1865 Congress had prescribed that before any person should be permitted to practice in a federal court he must take oath a.s.serting that he had never voluntarily borne arms against the United States, had never given aid or comfort to enemies of the United States, and so on. Garland, who had been a Confederate sympathizer and so was unable to take the oath, had however received from President Johnson the same year "a full pardon 'for all offences by him committed, arising from partic.i.p.ation, direct or implied, in the Rebellion,' * * *" The question before the Court was whether, armed with this pardon, Garland was ent.i.tled to practice in the federal courts despite the act of Congress just mentioned. Said Justice Field for a sharply divided Court: "The inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur.

A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; [thereto], if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity."[134] Justice Miller speaking for the minority protested that the act of Congress involved was not penal in character, but merely laid down an appropriate test of fitness to practice the law. "The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to exercise the functions of an attorney or counsellor at law, may be saved by the executive pardon from the penitentiary or the gallows, but he is not thereby restored to the qualifications which are essential to admission to the bar."[135]

Justice Field's language must today be regarded as much too sweeping in light of a decision rendered in 1914 in the case of Carlesi _v._ New York.[136] Carlesi had some years before been convicted of committing a federal offense. In the instant case the prisoner was being tried for a subsequent offense committed in New York. He was convicted as a second offender, although the President had pardoned him for the earlier federal offense. In other words, the fact of prior conviction by a federal court was considered in determining the punishment for a subsequent State offense. This conviction and sentence were upheld by the Supreme Court. While this case involved offenses against different sovereignties, the Court declared by way of dictum that its decision "must not be understood as in the slightest degree intimating that a pardon would operate to limit the power of the United States in punis.h.i.+ng crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circ.u.mstance of aggravation even although for such past offenses there had been a pardon granted."[137]

LIMITS TO THE EFFICACY OF A PARDON

But Justice Field's lat.i.tudinarian view of the effect of a pardon undoubtedly still applies ordinarily where the pardon is issued _before conviction_. He is also correct in saying that a full pardon restores a _convict_ to his "civil rights," and this is so even though simple completion of the convict's sentence would not have had that effect. One such right is the right to testify in court, and in Boyd _v._ United States the Court held that the disability to testify being a consequence, according to principles of the common law, of the judgment of conviction, the pardon obliterated that effect.[138] But a pardon cannot "make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has a.s.signed them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law."[139]

CONGRESS AND AMNESTY

Congress cannot limit the effects of a Presidential amnesty. Thus the act of July 12, 1870, making proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War, notwithstanding any Executive proclamation, pardon, amnesty, or other act of condonation or oblivion, was p.r.o.nounced void. Said Chief Justice Chase for the majority: "* * * the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The Court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the Court to be instrumental to that end."[140] On the other hand, Congress may itself, under the necessary and proper clause, enact amnesty laws remitting penalties incurred under the national statutes,[141] and may stipulate that witnesses before courts or other bodies qualified to take testimony shall not be prosecuted by the National Government for any offenses disclosed by their testimony.[142]

Clause 2. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Amba.s.sadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The Treaty-Making Power

PRESIDENT AND SENATE

The plan which the Committee of Detail reported to the Federal Convention on August 6, 1787 provided that "the Senate of the United States shall have power to make treaties, and to appoint Amba.s.sadors, and Judges of the Supreme Court."[143] Not until September 7, ten days before the Convention's final adjournment, was the President made a partic.i.p.ant in these powers.[144] The const.i.tutional clause evidently a.s.sumes that the President and Senate will be a.s.sociated throughout the entire process of making a treaty, although Jay, writing in The Federalist, foresaw that the initiative must often be seized by the President without benefit of Senatorial counsel.[145] Yet so late as 1818 Rufus King, Senator from New York, who had been a member of the Convention, declared on the floor of the Senate: "In these concerns the Senate are the Const.i.tutional and the only responsible counsellors of the President. And in this capacity the Senate may, and ought to, look into and watch over every branch of the foreign affairs of the nation; they may, therefore, at any time call for full and exact information respecting the foreign affairs, and express their opinion and advice to the President respecting the same, when, and under whatever other circ.u.mstances, they may think such advice expedient."[146]

NEGOTIATION A PRESIDENTIAL MONOPOLY