The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-12-06
Can the President be Divested of tn
PardOning Power?


Can the President be Divested of the
PardOning Power?
From the Wortd.
The bill, which has been set on its ira 7els
through the two Houses, for repeating the
amnesty section of the treason act, is futile and
nugatory, like the section it aims to repeal.
The President derives his pardoning power not
from any act OF Congress, but from the Consti.
tuition; and no legislation can either strengthen
or impair it. We expressed this opinion on
Tuesday, on which tue Eueaing Post, in the
superabundance of its wisdom, delivers itself
as follows
eve are surprised to read in morning journal
an assertion that the President may continue to
issue pardons to Rebels before trial, unoer the
general yardonng power conferred by the Constitu.
ton. OF course This is absurd. He has no such
authority. He is empowered to grant pardons after
tIIal and conviction, but not before"
Surprise" is the daughter of ignorance, as
the Post will, iD this at least, presently De
in position to see. That form OF pardon TO
which we give the name OF amnesty dtIodyS pre-
ceGes conviction. That amnesties are included
under the constitutional authority TO pardon,
was the opinion OF Hamilton in discussing that
subject IN the TederdtiSt an opinion repeated
and endorsed by Story in his Commentaries on
the Constitution"-an opinion officially acted on
by Washington in the case OF the Whisky insur-
gents in Pennsylvania whom he amnestied
without any Congressional authorization. In
the Constitution OF the French republic OF 1848,
the amnesty power was expressly excepted out
of the pardoning power OF the Executive, and
reserved to the Legislature, which shows that,
wrhout such express exception, 1T would have
oeen nctuded under the general power to grant
paIdOns
In amnestes pardon precedes conviction from
the very nature OF the case. Individual par
dons may precede or follow conviction, accord
ing to the pleasure OF the President When that
great. eloquent lawyer, William Writ, was Attor-
ney-General, he ADVISED the President on this
point as tollows:-"On the second point, whether
pardon can precede condemnation, am of
opinion that the President may, if he chooses,
grant such pardon. There is nothing in the
terms in which the power OF pardon is granted
which requires that it ST all be preceded by
sentence OF conviction on the verdict OF a
jury. There is nothing in the force of the term
pardon which implies previous condemna-
ton. A pardon presupposes an ofense, and
nothing more. II the party contesses his guilt"
(and the application for pardon is a comics
sion), 'eVery degree of certainty as to the fact
of the perpetration OF the otfense Is gained
which al trial could gain; because, if he were
be empanneled and no evidence would
be heard in the case, but judgment would
be enteredon his own plea. ("Opinions
Of Attorneys General" volume /, page 25l.)
John M. Berrian, another great lawyer, when
Acknowledgement, advised the President
against The frequent interposition of he pardon
ing power previous to trial; taking the consti-
tutional authority for granted, and resting his
advice solely on eXpedency. "It is not Denied"
he said, "tbat cases may exist in which such in
terposItion would be proper; and it is admitted
that the case presented, on the evidence fur
nisbed by the memorialists, is strong one"
("Opnions Attorney Generals l, 1881 Felix
Grundy, another very distinguished Attorney
General, also asserted the pardonng power in
the utmost latitude, as to time, form, and man.
ner, in which it should be eXerted. 1.-THE par
doning power" he said, ''given by the Constitu-
ton, is penary cases Of impeachment only ex-
cepted. Its exercise, and the mode of its exer-
else, areiplaced, without condition or limitation,
wholly in the discretion OF the President"
("Opinions," etc., ii, 1242l
The blunder of the Euening Post would not
have deserved all This array oil authorities il the
doctrine il assumes were not acted on by Con-
gress, and used as weapon against the 'Presi-
upon to contest it, point by point, and to make
our refutatlon of il superhuously conclusive. 1t
was begotten by perverse party spirit and is
born of ofignorance.