rxni:i> 





in him alone in his official capacity a- I 'resi- 

 dent. Tin 1 Senate arc not to In- told that in the 



rations of the convention |.y which the 

 iintinii was framed this particular clause 



was the subject, of some contrariety of 

 opinion. Some of tlio members of the conven- 

 tion believed that, if the powcrof pardon should 

 :.t all (and most of them did think that it. 

 >hould e\i<t, contrary to the opinion, I think, 

 of Montesquieu or some of the European writers, 

 that i In- power should not exist in a republic 

 because there is no necessity for it), it should 



KM! 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 

 iriven to him nt 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 con- 

 clusion received the unanimous assent finally 

 of the convention, that it was much more de- 

 sirable to give it to the President alone, and so 

 it was jjfiven. From the nature of the power it 

 must, 1 think, be very evident that it is not 

 only in the President but in the President ex- 

 rlu-ively. 



"The" power of pardon cannot be under the 

 -ante government well given to any two de- 

 partments of such government. It must be 

 : _'iveii to one to the exclusion of all others, and, 

 if iriven to one to the exclusion of all others, 

 the decisions of one, whether to grant the 

 pardon or to refuse the pardon, must be con- 

 clusive. 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 prose- 

 cuted, 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 The statute being repealed, no prosecution can 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 , 

 necessarily falls. That has been decided over 

 and over again. But that is not the exercise 

 of the pardoning power it is the mere exer- 

 cise of the legislative, power of Congress. Be- 

 ing alone authorized to pass the law which 

 creates the offence and imposes the penalty, 

 they are alone the judges to determine whether 

 thai 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 par- 

 don is not only comprehensive of every variety 

 of offence which may be subject to prosecution 

 unless pardoned, but is granted to him in terms 

 as comprehensive as the English language per- 

 mits. How he is to execute the power is not 

 >tated. Whether ho is to execute it at all is 

 necessarily not stated. "When he is to exe- 

 cute it is also not stated. Now, in the absence 

 of any particular specification of the mode in 



which the power is to be . xertod, it would 

 seem to follow that it may h- :i anj 



modi- by which the- I'lv-id.-nt can make known 

 to the public or to the < io\ vrnment what h'lM 

 opinion is in relation to the offences whi> 

 prol'es,cH 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 proc- 

 lamation, or whether he could grant an am- 

 nesty by proclamation. I answered that the 

 other day by suggesting that, in tl e 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 grant- 

 ing 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 i 

 the prosecution is concerned, as an unpardoned 

 offender ; but that is only because a pardon of 

 that description is in the nature of a convey- 

 ance, a deed of which the courts can have no 

 notice. The courts cannot take notice what 

 pardons there are, if any, in the State Depart- 

 ment. Like every other fact, therefore, exist- 

 ing inpais, 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 

 Vhat may be the subject of the proclamations, 

 operate as laws, and the courts are bound to 

 take notice of them. It was upon that prin- 

 ciple 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 Presi- 

 dent in relation to the rebellion. The act of 

 1861 authorized the President by proclamation 

 to proclaim certain ports of the States in insur- 

 rection 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 on 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 irive 

 the party the benefit of it, provided the 1 

 dent is authorized to grant pardon by procla- 

 mation. 



"Now, what doubt can there bo about that? 

 In the case of Wells, to which my friend from 



