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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[p.461]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[p.462]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[p.463]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.[p.464]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


214 In re Yamashita, 327 U.S. 1 (1946).
215 Id., 81.
216 See Gross, The Criminality of Aggressive War, 41 Pol. Sci. Rev.205 (1947).
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, 36C. 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.
218 10 U.S.C. §§ 331 –334, 3500, 8500, deriving from laws of 1795, 1 Stat. 424 1861, 12 Stat. 281, and 1871 17 Stat. 14 .
219 The other instances were in domestic disturbances at the request of state Governors.
220 Proc. No. 3204, 22 Reg.7628 (1957); E.O. 10730, 22 Fed. Reg. 7628. See 41 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).
221 Proc. No. 3497, 27 Reg.9681 (1962); E.O. 11053, 27 Reg.9693 (1962). See United States v. Barnett, 346 F.2d 99 (5th Cir. 1965).
222 Proc. 3542, 28 Reg.5707 (1963); E.O. 11111, 28 Reg.5709 (1963); Proc. No. 3554, 28 Fed. Reg. 9861; E.O. 11118, 28 Reg.9863 (1963). See Alabama v. United States, 373 U.S. 545 (1963).
223 Proc. No. 3645, 30 Reg.3739 (1965); E.O. 11207, 30 Reg.2743 (1965). See Williams v. Wallace, 240 F.Supp. 100 (M.D. Ala. 1965).
224 Ibid.
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.
226 E. Corwin, op. cit., n.44, 82.
227 L. White, The Federalists—A Study in Administrative History (New York: 1948), ch. 4.
228 E. Corwin, op. cit., n.44, 19, 61, 79–85, 211, 295–299, 312, 320–323, 490–493.
229 United States v. Wilson, 7 Pet. (32 U.S.) 150, 160–161 (1833).
230 236 U.S. 79, 86 (1915).
231 Id., 90–91.
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.
233 Biddle v. Perovich, 274 U.S. 480, 486 (1927).
234 Cf. W. Humbert, The Pardoning Power of the President (Washington: 1941), 73.
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.
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