Annotation 9 - Article II

Martial Law and Constitutional Limitations

Two theories of martial law are reflected in decisions of the Supreme Court. The first, which stems from the Petition of Right, 1628, provides that the common law knows no such thing as martial law; 194 that is to say, martial law is not established by official authority of any sort, but arises from the nature of things, being the law of paramount necessity, leaving the civil courts to be the final judges of necessity. 195 By the second theory, martial law can be validly and constitutionally established by supreme political authority in wartime. In the early years of the Supreme Court, the American judiciary embraced the latter theory as it held in Luther v. Borden 196 that state declarations of martial law were conclusive and therefore not subject to judicial review. 197 In this case, the Court found that the Rhode Island legislature had been within its rights in resorting to the rights and usages of war in combating insurrection in that State. The decision in the Prize Cases, 198 while not dealing directly with the subject of martial law, gave national scope to the same general principle in 1863.

The Civil War being safely over, however, a divided Court, in the elaborately argued Milligan case, 199 reverting to the older doctrine, pronounced void President Lincoln's action, following his suspension of the writ of habeas corpus in September, 1863, in ordering the trial by military commission of persons held in custody as ''spies'' and ''abettors of the enemy.'' The salient passage of the Court's opinion bearing on this point is the following: ''If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.'' 200 Four Justices, speaking by Chief Justice Chase, while holding Milligan's trial to have been void because violative of the Act of March 3, 1863, governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan's trial. Said the Chief Justice: ''Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President and Commander-in-Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature, and by the principles of our institutions.

''. . . We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists.

''Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to inva sion, it is within the power of Congress to determine in what States or districts such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offenses against the discipline or security of the army or against the public safety.'' 201 In short, only Congress can authorize the substitution of military tribunals for civil tribunals for the trial of offenses; and Congress can do so only in wartime.

At the turn of the century, however, the Court appears to have retreated from its stand in Milligan insofar as it held in Moyer v. Peabody 202 that ''the Governor's declaration that a state of insurrection existed is conclusive of that fact. . . . The plaintiff's position is that he has been deprived of his liberty without due process of law. But it is familiar that what is due process of law depends on circumstances. . . . So long as such arrests are made in good faith and in honest belief that they are needed in order to head the insurrection off, the Governor is the final judge and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.'' 203 The ''good faith'' test of Moyer, however, was superseded by the ''direct relation'' test of Sterling v. Constantin, 204 where the Court made it very clear that ''[i]t does not follow . . . that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.'' 205  

Martial Law in Hawaii .--The question of the constitutional status of martial law was raised again in World War II by the proclamation of Governor Poindexter of Hawaii, on December 7, 1941, suspending the writ of habeas corpus and conferring on the local commanding General of the Army all his own powers as governor and also ''all of the powers normally exercised by the judicial officers . . . of this territory . . . during the present emergency and until the danger of invasion is removed.'' Two days later the Governor's action was approved by President Roosevelt. The regime which the proclamation set up continued with certain abatements until October 24, 1944.

By section 67 of the Organic Act of April 30, 1900, 206 the Territorial Governor was 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 Constitution . . . 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, 207 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.'' 208  

The Court relied on the majority opinion in Ex parte Milligan. Chief Justice Stone concurred in the result. ''I assume also,'' he said, ''that there could be circumstances in which the public safety requires, and the Constitution permits, substitution of trials by military tribunals for trials in the civil courts,'' 209 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.'' 210  

Articles of War: The Nazi Saboteurs .--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 ashore, 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 petitioned 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 constituted 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. ''. . . [T]hose who during time of war pass surreptitiously 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.'' 211 The second argument it disposed of by showing that petitioners' case was of a kind that was never deemed to be within the terms of the Fifth and Sixth Amendments, citing in confirmation of this position the trial of Major Andre. 212 The third contention the Court overruled by declining to draw the line between the powers of Congress and the President in the premises, 213 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 Constitution 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 petitioners were enemy aliens, and so, strictly speaking, without constitutional 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 appeals to the courts.

Articles of War: World War II Crimes .--As a matter of fact, in General Yamashita's case, 214 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.'' 215 And the adherence of the United States to the Charter of London in August 1945, under which the Nazi 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 Constitution of ex post facto laws, nor does international law forbid ex post facto laws. 216  

Martial Law and Domestic Disorder .--President Washington himself took command of state militia called into federal service to quell the Whiskey Rebellion, but there were not too many occasions subsequently in which federal troops or state militia called into federal service were required. 217 Since World War II, however, the President, by virtue of his own powers and the authority vested in him by Congress, 218 has utilized federal troops on nine occasions, five of them involving resistance to desegregation decrees in the South. 219 In 1957, Governor Faubus employed the Arkansas National Guard to resist court-ordered desegregation in Little Rock, and President Eisenhower dispatched federal soldiers and brought the Guard under federal authority. 220 In 1962, President Kennedy dispatched federal troops to Oxford, Mississippi, when upon the admission of an African American student to the University of Mississippi rioting broke out, with which federal marshals originally assigned could not cope. 221 In June and September of 1964, President Johnson sent troops into Alabama to enforce court decrees opening schools to blacks. 222 And in 1965, the President used federal troops and federalized local Guardsmen to protect participants in a civil rights march. 223 The President justified his action on the ground that there was a substantial likelihood of domestic violence because state authorities were refusing the marchers protection. 224  


The Cabinet

The above provisions are the meager residue from a persistent effort in the Federal Convention to impose a council on the President. 225 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 con sist of the head 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 principal officer separately and in writing, and is to relate only to the duties of their respective offices. 226 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, 227 and may be dispensed with on presidential initiative at any time, being totally unknown to the Constitution. Several Presidents have in fact reduced the Cabinet meeting to little more than a ceremony with social trimmings. 228  


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 institution 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 continued to hold that to be noticed judicially this deed must be pleaded, like any private instrument. 229  

In the case of Burdick v. United States, 230 Marshall's doctrine was put to a test that seems to have overtaxed it, perhaps fatally. Burdick, 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 participated in in connection with the matter he had been questioned about. Burdick, 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. Circumstances 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. . . .'' 231 Nor did the Court give any attention to the fact that the President had accompanied his proffer to Burdick with a proclamation, although a similar procedure had been held to bring President Johnson's amnesties to the Court's notice. 232 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 constitutional 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.'' 233 Whether these words sound the death knell of the acceptance doctrine is perhaps doubtful. 234 They seem clearly to indicate that by substituting a commutation order for a deed of pardon, a President can always have his way in such matters, provided the substituted penalty is authorized by law and does not in common understanding exceed the original penalty. 235  

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, 236 the power to pardon absolutely or conditionally, and the power to commute sentences, which, as seen above, is effective without the convict's consent. 237 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. 238 It was early assumed that the power included the power to pardon specified classes or communities wholesale, in short, the power to amnesty, which is usually exercised by proclamation. General amnesties were issued by Washington 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. 239 Not, however, till after the Civil War was the point adjudicated, when it was decided in favor of presidential prerogative. 240  

Offenses Against the United States; Contempt of Court .--In the first place, such offenses are not offenses against the United States. In the second place, they are completed offenses. 241 The President cannot pardon by anticipation, otherwise he would be invested with the power to dispense with the laws, his claim to which was the principal cause of James II's forced abdication. 242 Lastly, the term has been held to include criminal contempts of court. Such was the holding in Ex parte Grossman, 243 where Chief Justice Taft, speaking for the Court, resorted once more to English conceptions as being authoritative in construing this clause of the Constitution. 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 Constitution, 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 insofar 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.'' 244 Nor was any new or special danger to be apprehended from this view of the pardoning power. ''If,'' said 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 queried 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?'' 245  

Effects of a Pardon: Ex parte Garland .--The great leading case is Ex parte Garland, 246 which was decided shortly after the Civil War. By an act passed in 1865, Congress had prescribed that before any person should be permitted to practice in a federal court he must take oath asserting 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 participation, direct or implied, in the Rebellion,' . . .'' The question before the Court was whether, armed with this pardon, Garland was entitled to practice in the federal courts despite the act of Congress just mentioned. Said Justice Field for a 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 offence. 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.'' 247  

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 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.'' 248 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. 249 Carlesi had been convicted several years before 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 punishing crimes against its authority to provide for taking into consideration past offenses committed by the accused as a circumstance of aggravation even although for such past offenses there had been a pardon granted.'' 250  

Limits to the Efficacy of a Pardon .--But Justice Field's latitudinarian 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. 251 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 assigned 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.'' 252  

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 pro nounced void. Said Chief Justice Chase for the majority: ''[T]he 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.'' 253 On the other hand, Congress itself, under the necessary and proper clause, may enact amnesty laws remitting penalties incurred under the national statutes. 254  


[Footnote 194] C. Fairman, The Law of Martial Rule (Chicago: 1930), 20-22; A. Dicey, Introduction to the Study of the Law of the Constitution (New York: 5th ed. 1923), 283, 290.

[Footnote 195] Id., 539-544.

[Footnote 196]   48 U.S. (7 How.) 1 (1849). See also Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 -33 (1827).

[Footnote 197] 7 How. (48 U.S.), 45.

[Footnote 198]   67 U.S. (2 Bl.) 635 (1863).

[Footnote 199] Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

[Footnote 200] Id., 127.

[Footnote 201] Id., 139-140. In Ex parte Vallandigham, 68 U.S. (1 Wall.) 243 (1864), the Court had held while war was still flagrant that it had no power to review by certiorari the proceedings of a military commission ordered by a general officer of the Army, commanding a military department.

[Footnote 202]   212 U.S. 78 (1909).

[Footnote 203] Id., 83-85.

[Footnote 204]   287 U.S. 378 (1932). ''The nature of the power also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for without such liberty to make immediate decision, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace'' Id., 399-400.

[Footnote 205] Id., 400-401. This holding has been ignored by States on numerous occasions. E.g., Allen v. Oklahoma City, 175 Okla. 421, 52 P.2d 1054 (1935); Hearon v. Calus, 178 S.C. 381, 183 S.E. 13 (1935); and Joyner v. Browning, 30 F. Supp. 512 (D.C.W.D. Tenn. 1939).

[Footnote 206] 31 Stat. 141, 153 (1900).

[Footnote 207] Duncan v. Kahanamoku, 327 U.S. 304 (1946).

[Footnote 208] Id., 324.

[Footnote 209] Id., 336.

[Footnote 210] Id., 343.

[Footnote 211] Ex parte Quirin, 317 U.S. 1, 29 -30, 35 (1942).

[Footnote 212] Id., 41-42.

[Footnote 213] Id., 28-29.

[Footnote 214] In re Yamashita, 327 U.S. 1 (1946).

[Footnote 215] Id., 81.

[Footnote 216] See Gross, The Criminality of Aggressive War, 41 Am. Pol. Sci. Rev. 205 (1947).

[Footnote 217] United States Adjutant-General, Federal Aid in Domestic Disturbances 1787-1903, S. Doc. No. 209, 57th Congress, 2d sess. (1903); Pollitt, Presidential Use of Troops to Enforce Federal Laws: A Brief History, 36 N.C. L. Rev. 117 (1958). United States Marshals were also used on approximately 30 occasions. United States Commission on Civil Rights, Law Enforcement--A Report on Equal Protection in the South (Washington: 1965), 155-159.

[Footnote 218] 10 U.S.C. Sec. Sec. 331-334, 3500, 8500, deriving from laws of 1795, 1 Stat. 424 1861, 12 Stat. 281, and 1871 17 Stat. 14.

[Footnote 219] The other instances were in domestic disturbances at the request of state Governors.

[Footnote 220] Proc. No. 3204, 22 Fed. Reg. 7628 (1957); E.O. 10730, 22 Fed. Reg. 7628. See 41 Ops. Atty. Gen. 313 (1957); see also, Cooper v. Aaron, 358 U.S. 1 (1958); Aaron v. McKinley, 173 F.Supp. 944 (E.D. Ark. 1959), affd. sub nom. Faubus v. Aaron, 361 U.S. 197 (1959); Faubus v. United States, 254 F.2d 797 (8th Cir. 1958), cert. den. 358 U.S. 829 (1958).

[Footnote 221] Proc. No. 3497, 27 Fed. Reg. 9681 (1962); E.O. 11053, 27 Fed. Reg. 9693 (1962). See United States v. Barnett, 346 F.2d 99 (5th Cir. 1965).

[Footnote 222] Proc. 3542, 28 Fed. Reg. 5707 (1963); E.O. 11111, 28 Fed. Reg. 5709 (1963); Proc. No. 3554, 28 Fed. Reg. 9861; E.O. 11118, 28 Fed. Reg. 9863 (1963). See Alabama v. United States, 373 U.S. 545 (1963).

[Footnote 223] Proc. No. 3645, 30 Fed. Reg. 3739 (1965); E.O. 11207, 30 Fed. Reg. 2743 (1965). See Williams v. Wallace, 240 F.Supp. 100 (M.D. Ala. 1965).

[Footnote 224] Ibid.

[Footnote 225] 1 M. Farrand, op. cit., n.4, 70, 97, 110; 2 id., 285, 328, 335-337, 367, 537-542. Debate on the issue in the Convention is reviewed in C. Thach, The Creation of the Presidency 1775-1789 (Baltimore: 1923), 82, 83, 84, 85, 109, 126.

[Footnote 226] E. Corwin, op. cit., n.44, 82.

[Footnote 227] L. White, The Federalists--A Study in Administrative History (New York: 1948), ch. 4.

[Footnote 228] E. Corwin, op. cit., n.44, 19, 61, 79-85, 211, 295-299, 312, 320-323, 490-493.

[Footnote 229] United States v. Wilson, 32 U.S. (7 Pet.) 150, 160 -161 (1833).

[Footnote 230]   236 U.S. 79, 86 (1915).

[Footnote 231] Id., 90-91.

[Footnote 232] Armstrong v. United States, 13 Wall. (80 U.S.), 154, 156 (1872). In Brown v. Walker, 161 U.S. 591 (1896), the Court had said: ''It is almost a necessary corollary of the above propositions that, if the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.'' Id., 599, citing British cases.

[Footnote 233] Biddle v. Perovich, 274 U.S. 480, 486 (1927).

[Footnote 234] Cf. W. Humbert, The Pardoning Power of the President (Washington: 1941), 73.

[Footnote 235] Biddle v. Perovich, 274 U.S. 480, 486 (1927). In Schick v. Reed, 419 U.S. 256 (1976), the Court upheld the presidential commutation of a death sentence to imprisonment for life with no possibility of parole, the foreclosure of parole being contrary to the scheme of the Code of Military Justice. ''The conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.'' Id., 264.

[Footnote 236] 23 Ops. Atty. Gen. 360, 363 (1901); Illinois Central Railroad v. Bosworth, 133 U.S. 92 (1890).

[Footnote 237] Ex parte William Wells, 59 U.S. (18 How.) 307 (1856). For the contrary view, see some early opinions of the Attorney General, 1 Ops. Atty. Gen. 341 (1820); 2 Ops. Atty. Gen. 275 (1829); 5 Ops. Atty. Gen. 687 (1795); cf. 4 Ops. Atty. Gen. 458 (1845); United States v. Wilson, 32 U.S. (7 Pet.) 150, 161 (1833).

[Footnote 238] Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence, however, within the same term of court, by shortening the term of imprisonment, although defendant had already been committed, is a judicial act and no infringement of the pardoning power. United States v. Benz, 282 U.S. 304 (1931).

[Footnote 239] See 1 J. Richardson, op. cit., n.42, 173, 293; 2 id., 543; 7 id., 3414, 3508; 8 id., 3853; 14 id., 6690.

[Footnote 240] United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1872). See also United States v. Padelford, 76 U.S. (9 Wall.) 531 (1870).

[Footnote 241] Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867).

[Footnote 242] F. Maitland, Constitutional History of England (London: 1920), 302-306; 1 Ops. Atty. Gen. 342 (1820). That is, the pardon may not be in anticipation of the commission of the offense. A pardon may precede the indictment or other beginning of the criminal proceeding, Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1867), as indeed President Ford's pardon of former President Nixon preceded institution of any action. On the Nixon pardon controversy, see Pardon of Richard M. Nixon and Related Matters, Hearings before the House Judiciary Subcommittee on Criminal Justice, 93d Congress 2d sess. (1974).

[Footnote 243]   267 U.S. 87 (1925).

[Footnote 244] Id., 110-111.

[Footnote 245] Id., 121, 122.

[Footnote 246]   71 U.S. (4 Wall.) 333, 381 (1867).

[Footnote 247] Id., 380.

[Footnote 248] Id., 396-397.

[Footnote 249]   233 U.S. 51 (1914).

[Footnote 250] Id., 59.

[Footnote 251]   142 U.S. 450 (1892).

[Footnote 252] Knote v. United States, 95 U.S. 149, 153 -154 (1877).

[Footnote 253] United States v. Klein, 80 U.S. (13 Wall.) 128, 143 , 148 (1872).

[Footnote 254] The Laura, 114 U.S. 411 (1885).

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