, 1866-12-29
THE PARDONING POW KE.
Senator TTuEnbull's Remarks on tta
Proposed Amendment OF the Cou0scu
A.

Mr.. CowAS. l should lke to have the
thirteenth section OF the act of 1902, which
Il is PROPOSE cd to repeal. read.
The Secretary read as follows:
"sEu 13 And btit Jurt.tr enac'td, That the
President IL hereafte. authorized 1t any tune here
rs1 navo pruietpated in the existing rebellion In
sas e Ell aoa .S .ge I'D ID. ma
public welh ro.'
MI JOHNSON. should like to hear the
honorable chairman Of the Judiciary Com
are for passing this proposed BILL It docs
nothing but repeal, Us understand It, ooe of,
the sections of the act Of lS62, which gare the
President authority In certain cases to grant
pardons either general Or special. I do not
know whether am right Or not, but hnye
been under the impression that that power
Is nov IN the Executive By the Constitution;
that 1t Ia not conferred By the act Of 1861
and that nothing will be accomplished by It's
repeal. suppose thzt the proposition to re-
peal the act was founded on the opinion that
without it the power could not be exercised
by the Executive. should like to know II
ttht Is the opinion Of the honorable chair
n.an whittier he proposes to .cpca1 it upon
hat Erous d.
Mr. TRrxBrL1. Mr. President, I presume
tor, ia familiar with the constitutional pro.
vision which coulerB upon the President nu-
lhor1ty to grant repzieves and pasdons. OF
conrse, tie repeal Of this section Of the act
Of 1867 will not repeal the Consultation, md
IsupPose no one denlcs the authority Of the
President to grant pardons under the Con-
sututIou. The only effect of the passage Of
the bill under confederation, Is to repeal the
thirteenth section Of the act OF july II,
1859. II is possible, as has been suggested
haste with which this Bill Was hurried
through the other branch Of Congress, and
the anxiety manifested In this body by
come Of Its members to press 1t to NJ
immediate vote without the usual reference
to committee, that IN impression has gone
ont to the country that By the repeal Of this
thirteenth section the power OF the President
to grant pardops and restore to rebels their
property would be taken aWay. Such, how
syeT, vii pot be It's effect IN my opinion.
restore property will be lust Is complete
after the passage Of this bill repeating the
thirteenth section Of the act Of 1863 as be-
fore. The Constitution confers on the Psesi-
dent the power 'to grant repricyes aud
pardons for offences against the United
Il is not in the power Of Congress to
pardon is 4 remission Of tde crime or
offence, and not Of the conviction,
asd a%1 may b. Granted as J.. well ell before as
nrasfione ,rere sat+l.a hv .9oo5sten- ~ ~
Attorneys General and Of the Supreme Court
OF the United States Feals ago. Mr. Writ,
VINO was attorney GcheTai u1der Mr. Mon
.p, ,Eass an opi9'on, t4lk IN iesu, tnat
Snas ins 1es,uens hS. nan au.aoIty 70 Rlant par
the ground that & pardon was of the offence
and net Of the conviction for the offence;
that the conviction was only evidence OF tue
Snsa Sltme or oneneo % NMcn 9aa ~ oeen committed.
1tuoss4nsnt tta it hiettuaneys s 1SueA ~, nave gwen
Ga- ne sSns apip.on, an1 tne PIaetlce OF the
opinion; The supreme Court Of the United
states, IN tie case of e. pIrft Wells. which
reported Ia IL Howard, page Sl1, and
which have before me-, quoted with appro-
baton nth tais passage from Lord Coke:
xhssety IT. K5ne eitns5 ese;s
c. Inc, ofence. panishnsnt e1ecut; o. rie,'. t,t
deb, q duty, temporal Of Ecclesiastical. ~ Inst.
sao}
The same Court. In q case reported in
PeteIg, In which the ol.inion was delivered
By Chief Justice Marshall, decided that
pardon mag be either absolute or conditions
al, They quote in that o,,infon n1sn Trom
common law writer's on the subiect of mr-
don and lis effect. and sav:
"a n.,fon IL 1.sa - H. v.,,au. .,-.,.,
de1ite IL essena ma ~ 'de ds,,xe19 d Of which
plcte without acceptance 1t then nav bo re,ec;sd
by the person to whom II Is rendered and Il It be
iesse.ea., We h1Fe discoEeIed L no power tn court
Sx1.ss ns,e ~ IL a'na' -e"seo aosff u.s. fasoa.7
The point BON In In This case was the rtbor,,v \,
s sne tFesloent 70 impose condition in grant
inE PARDON, ana the supreme Court held
tnat inat authority existed IN the President,
anu tley laia down lhe rule ln both these
cases that the power OF the President "to
strued Us those words were understood
~ the lime they were Incorporated
into tie constitution Of the United
states. The fesident's power to re-
store property seized unoer the confscatton
az az 20 rs fofmer rebel owners will not be
anectea BY the repeal OF the thi1tieth sec
tion OF the get Of ls62, as the section Is
siieht On that subject: II is certainly
Wltlan Inc power OF the frealdent to refuse
10 .estofe property to pardoned rebels BY
pardon that they shall not claim the prop
erty which has been seized by the Govern.
mcnt. The President, however, has not
generally done this, and By granting abso-
lute pardons, has giren an cfucr In iact for
BY the report Of General Howard, made to
Congress at the last session, that the Presi.
dent did direct property to be restored to a
person who had been pardoned, and under
nc rue adoEted In thas ease GENERAL How
afd states that lie proeeeded to restore to
pafdoned rebels more than f0ur hundred
thousand acres of land which had been seized
under the condscatton act. will not uuder-
lake 70 say whether the President has au-
lhoElty to restore this property. He Ger
talnly ms no such authority where the rights
o. thru parties haFe, ,intctvened. Whenever
the property has been condemned under the
contseatton act, his right to take away the
tnle OF an Individual who bad acquired any
interest IN the property and restore It to the
Whether he could before, after the mere
4tizure Of the property, Is another ouestion
but 1t is not Infected IN m5 opinion by The
Fcleal Of the section under Consideration.
II the President has this power under the
pcal this thirteenth section; what harm does
It do! answer that this thirteenth SECTION
is broader than the Constitution; 1t author
neo The president bT proclamation to grant
aGsgttsn1 rafGaon ma amnesty Ihe difference. Is
~ Is this: pardon Is an act Of mercy ex-
tended to an Individual; 1t mus: be by deed
1t must be pleaded; Chief Justice Marshall
says Is essential to Its validity that 1t must
be ela, ds1ive1sd1an ~ amnesty Is general pardon
nte undertakes TO confer upon the
President Of the United States Authority
by general proclamation to grant pardon
and amnesty to evcIybody who has been en-
ncatS I'd psrse bcE r. Of
therefore there Is pruprietv m 1enes,ins 1nr
the section Of the statute which confers this
power upon tue Fresldeut. Let him have
euch powers as the Constitution gives him
o. course Congress cannot take from him
tnose powers but let us not be a party to
comforting sny additional powers or any ad-
attlona! facility upon the Presidens to grant
pasdons TO persons engaged in this rebellion
who have shown themselves after obtaining
pardon 80 undeaerying of tho mercy which
haa been extended to them. Let us repeal |
thai clause which authorized the Issuing Of |
procIamatfons of amnesty. This will at |
least be an expression Of opinion on The mart