ters, in which the opinion was delivered by Chief Justice Marshall, decided that a pardon may be either absolute or conditional. They quote in that opinion also from common law writers on the subject of pardon and its effect, and say:

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.United States vs. Wilson, 7 Peters, page 161.

"The point in that case was the authority of the President to impose a condition in granting a pardon, and the Supreme Court held that that authority existed in the President, and they laid down the rule in both these cases that the power of the President 'to grant reprieves and pardons' is to be construed as those words were understood at the time they were incorporated into the Constitution of the United States. The President's power to restore property, seized under the confiscation act, to its former rebel owners, will not be affected by the repeal of the thirteenth section of the act of 1862, as the section is silent on that subject. It is certainly within the power of the President to refuse to restore property to pardoned rebels, by making it a condition when he grants the pardon that they shall not claim the property which has been seized by the Government. The President, however, has not generally done this, and, by granting absolute pardons, has given an order, in fact, for the restoration of property. It will be seen by the report of General Howard, made to Congress at the last session, that the President did direct property to be restored to a person who had been pardoned, and, under the rule adopted in that case, General Howard states that he proceeded to restore to pardoned rebels more than four hundred thousand acres of land which had been seized under the confiscation act. I will not undertake to say whether the President has authority to restore this property. He, certainly, has no such authority where the rights of third parties have intervened. Whenever the property has been condemned under the confiscation act, his right to take away the title of an individual who had acquired any interest in the property, and restore it to the former owners, would, doubtless, be gone. Whether he could before, after the mere seizure of the property, is another question; but it is not affected, in my opinion, by the repeal of the section under consideration.

"If the President has this power under the Constitution, it may be asked why then repeal this thirteenth section; what harm does it do? I answer that this thirteenth section is broader than the Constitution; it authorized the President, by proclamation, to grant pardon and amnesty. The difference, as I understand, between a pardon and an amnesty is this: a pardon is an act of mercy extended to an individual; it must be by deed; it must be pleaded

Chief Justice Marshall says it is essential to its validity that it must be delivered-an amnesty is a general pardon proclaimed by proclamation. This statute undertakes to confer upon the President of the United States authority by general proclamation to grant pardon and amnesty to everybody who has been engaged in the rebellion. The President has already issued general proclamations of amnesty and pardon; there can be no occasion for the exercise of that power hereafter, and, therefore, there is a propriety in repealing the section of the statute which confers this power upon the Presi dent. Let him have such powers as the Constitution gives him; of course Congress cannot take from him those powers; but let us not be a party to conferring any additional powers or any additional facility upon the President to grant pardons to persons engaged in this rebellion, who have shown themselves, after obtaining pardon, so undeserving of the mercy which has been extended to them. Let us repeal that clause which authorized the issuing of procla mations of amnesty. This will at least be an expression of opinion on the part of Congress that general pardons and restoration of property should not be continued; and if the President does continue to pardon rebels, and restore their property by individual acts under the Constitution, let him do so without having the sanction of Congress for his act.

"Therefore, sir, the committee recommended the passage of this bill, believing that the expression of such an opinion on the part of Congress was but carrying out the expressions of the people of this country, and that we should withhold any encouragement on our part to the granting of general pardons and restorations of property for the future, until we can see a better spirit manifested on the part of those who are their recipients."

Mr. Saulsbury, of Maryland, moved to strike out all of the bill after the enacting clause, and insert the following:

That the act entitled "An act to suppress insur rection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," approved July 17, 1862, be, and the same is hereby, repealed.

Mr. Johnson, of Maryland, said: "When the subject was before us prior to the recess, I asked my friend from Illinois, the chairman of the Judiciary Committee, if he proposed to repeal the section upon the ground that it gave powers to the President which he had not, or whether he supposed it was within the authority of Congress to take from the President any powers which he has, with reference to the subject, by the Constitution. The latter question he of course answered in the negative. He told us, and told us correctly, as he always means to do, that the power of pardon vested in the Presi dent by the Constitution cannot by legislation be taken from him; and for the same reason have no doubt. he would admit that it cannot be in any way limited or qualified. It is vested

I

in him alone in his official capacity as President. The Senate are not to be told that in the deliberations of the convention by which the Constitution was framed this particular clause in it was the subject of some contrariety of opinion. Some of the members of the convention believed that, if the power of pardon should exist at all (and most of them did think that it should exist, contrary to the opinion, I think, of Montesquieu or some of the European writers, that the power should not exist in a republic because there is no necessity for it), it should be vested not in the President alone or in any of the departments of the Government alone, but that it should be given to the President, if given to him at all, in connection with some of the other departments or some branch of one of the other departments. They, however, came to the conclusion, and I believe that conclusion received the unanimous assent finally of the convention, that it was much more desirable to give it to the President alone, and so it was given. From the nature of the power it mast, I think, be very evident that it is not only in the President but in the President exclusively.

The power of pardon cannot be under the same government well given to any two departments of such government. It must be given to one to the exclusion of all others, and, if given to one to the exclusion of all others, the decisions of one, whether to grant the pardon or to refuse the pardon, must be conchive. In our Government the only possible control that Congress can have over offences created by statute is after the offences have been committed, if they shall be committed, and they desire that they shall not be proseented, or after they have been prosecuted and prior to final judgment, to repeal the statute. The statute being repealed, no prosecution can be instituted if none has been instituted, and every prosecution that has been instituted Decessarily falls. That has been decided over and over again. But that is not the exercise of the pardoning power-it is the mere exercise of the legislative power of Congress. Being alone authorized to pass the law which creates the offence and imposes the penalty, they are alone the judges to determine whether that law should continue or not, and if they resolve that it shall not continue, and repeal under that opinion the law antecedently passed, no prosecution can be made under it in the future and all pending prosecutions at once fall.

"The power, then, of the President to pardon is not only comprehensive of every variety f offence which may be subject to prosecution anless pardoned, but is granted to him in terms comprehensive as the English language permits. How he is to execute the power is not stated. Whether he is to execute it at all is necessarily not stated. When he is to execute it is also not stated. Now, in the absence of any particular specification of the mode in

which the power is to be exerted, it would seem to follow that it may be exerted in any mode by which the President can make known to the public or to the Government what his opinion is in relation to the offences which he professes to pardon.

"I understood my friend from Illinois the other day as stating that he supposed, when Congress passed the section which we are now asked to repeal, some doubt was entertained whether, in the absence of any congressional authority, the President could pardon by proclamation, or whether he could grant an amnesty by proclamation. I answered that the other day by suggesting that, in the absence of any particular specification of the mode in which the power to pardon was granted, it might be exercised in any mode by which the President could make known his will. The usual mode in which it is exercised is by granting to each individual offender a pardon that is issued under the great seal, and unless the party pardoned thinks proper to accept it and after accepting it, in the event of prosecution thinks proper to plead it, he stands, as far as the prosecution is concerned, as an unpardoned offender; but that is only because a pardon of that description is in the nature of a conveyance, a deed of which the courts can have no notice. The courts cannot take notice what pardons there are, if any, in the State Department. Like every other fact, therefore, existing in pais, it must be brought to the attention of the tribunal before whom the question may be raised by evidence in pais. That evidence in cases of this description is, as I have stated, the pleading and the production in support of the plea of a pardon under seal.

"That is not applicable to a proclamation of the President. All proclamations which the President is authorized to make, no matter what may be the subject of the proclamations, operate as laws, and the courts are bound to take notice of them. It was upon that principle that the Supreme Court in the prize cases, and all the circuit courts before whom cases of that kind arose, noticed the proclamations which from time to time were issued by the President in relation to the rebellion. The act of 1861 authorized the President by proclamation to proclaim certain ports of the States in insurrection in a state of blockade. The courts said that that proclamation was a matter of which the courts were bound to take notice without any pleading, just as they would be bound to take notice of a law passed by Congress on a subject over which Congress has jurisdiction. When, therefore, a pardon, or an amnesty, is granted by proclamation, every court in the land and every department of the Government is bound to know of its existence and to give the party the benefit of it, provided the President is authorized to grant pardon by proclamation.

"Now, what doubt can there be about that? In the case of Wells, to which my friend from

Illinois referred, reported in 18 Howard (where the immediate question before the court was whether the President under the power to pardon had a right to pardon conditionally, and the court came to the conclusion that he had that right), they came to it in part upon the ground that the extent of the power was to be ascertained by recurring to the power and the manner in which it was executed in England at the time the Constitution was adopted; and as in England it appeared that from time to time the king had granted a pardon upon condition; and as the Constitution in no manner restrained the exercise of the power by the President, but contented itself with vesting in him the entire power, he could, as the king could, exert that power conditionally.

"The same reasoning evidently applies to the case before us, because as the Senate must be apprised-I am sure nobody knows it better than my friend from Illinois-the English monarch from time to time has granted pardon and granted amnesty by proclamation; and the passage which I read from the seventy-fourth number of the Federalist the other day shows that one of the reasons for vesting the power in the President was that it might be important at certain stages of an insurrection, in order to the quelling of the insurrection, to proclaim pardon to all the parties who might be engaged in it; and that could only be done, not by granting a pardon to each individual insurrectionist, for they could not be found out, but by a general statement on the part of the President, in the form of a proclamation, that all who should turn out to have been involved in the insurrection were to be considered as pardoned. "I am at a loss, therefore, to imagine, as far as the legal question is concerned, upon what plausible ground the necessity for passing the section which it is proposed to repeal was then placed, and of course I am at a loss to imagine upon what possible ground the repeal of that section can be placed consistent with the doctrine that, independent of that section, the whole power which the section proposes to give is already in the Executive."

Mr. Saulsbury, of Delaware, said: "In my judgment this original act of confiscation was misnamed. The title it bore upon its face was 'An act to punish treason,' and it was applied to the whole mass of the Southern people of this country. Will you tell me, sir, that you can frame a bill of indictment like this against eight million people? Such a thing is unknown in the history of the world. When our revolutionary fathers assumed to secede, if you please, from the government of Great Britain and to establish an independent government for themselves, the House of Commons rang with the cry of 'rebels' and 'traitors,' just as the Halls of Congress have rung with the cry of rebels' and 'traitors' since; but what said the master minds of the British Parliament then? They proclaimed the very doctrine which I proclaim here to-day, that you could not indict a whole

people, millions of men, for the crime of treason when they were acting under the power and authority of a government which had been erected over them-a government having the power to protect them, and where Great Britain could not afford protection in case they disobeyed the American governments which had been set up over them. And, sir, however mad and foolish it was-and I have always considered it to have been madness and foolishnesson the part of the Southern people to have entered upon the recent struggle, I say that the great mass of them did not incur thereby the crime of treason nor subject themselves to its penalties; and I assert no new doctrine. I assert a doctrine which has been maintained in the Federal courts of the United States. I assert a doctrine which your revolutionary fathers asserted, and which the tribunals of the country which they established asserted and maintained.

"Why, sir, any one who will take the trouble to look into Dallas's Reports will find a number of cases. I will refer to a single one, the case of Respublica 28. Samuel Chapman, to be found in 1 Dallas, where this very doctrine was judicially decided; and there cannot be found in any American authority since that day a single dictum, much less a decision, overruling that authority. What was that case? Penusylvania had established an independent government for itself, and in less than six months after the establishment of that government a man by the name of Chapman, an adherent of King George, did an act which was, in the judgment of the courts of Pennsylvania, treason against that government. He was a subject of King George, as all our fathers were, but he committed the act after the people of Pennsylvania had established for themselves an independent government. He was brought to trial, not, to be sure, in a Federal court, because there was not then any such tribunal, but in the courts of Pennsylvania, charged with the crime of being guilty of treason against that State, and, after a long and able trial, was convicted and executed. There, sir, is judicial precedent, showing that when a government de facto is established an individual citizen not yielding his obedience to it, but attempting to make war upon it, has, within the limits of this country and by the judgment of a learned legal tribunal, been found guilty and executed for the crime of treason against that government, although he claimed protection on ac count of what he asserted to be his superior allegiance to the Crown of Great Britain.

But, sir, the doctrine which I maintain is older than the case in Dallas. It is the recognized doctrine of England, and has been for hundreds of years. The student even of Blackstone is at no loss to know what is the true doctrine on this subject.

"Mr. President, it is time, high time, that wholesale accusations like these had ceased to be made. They can subserve no public good.