182 



CONGEESS, UNITED STATES. 



Illinois referred, reported in 18 Howard (where 

 the immediate question hefore the court was 

 whether the President under the power to par- 

 don 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 con- 

 dition ; 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 mon- 

 arch 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 insurrec- 

 tionist, for they could not be found out, but by 

 a general statement on the part of the Presi- 

 dent, 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 doc- 

 trine 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 mil- 

 lion 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 estab- 

 lish 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 1 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 Brit- 

 ain could not afford protection in case they dis- 

 obeyed the American governments which had 

 been set up over them. And, sir, however mad 

 and foolish it was and I have always consid- 

 ered it to have been madness and foolishness 

 on the part of the Southern people to have en- 

 tered 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 as- 

 sert 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 Eeports will find a num- 

 ber of cnses. I will refer to a single one, the 

 case of Respublica vs. 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? Penn- 

 sylvania had established an independent gov- 

 ernment 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, trea- 

 son against that government. He was a sub- 

 ject 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, be- 

 cause 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 judi- 

 cial precedent, showing that when a govern- 

 ment 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 govern- 

 ment, although he claimed protection on ac- 

 count of what he asserted to be his superior al- 

 legiance to the Crown of Great Britain. 



"But, sir, the doctrine which I maintain is 

 older than the case in Dallas. It is the recog- 

 nized doctrine of England, and has been for 

 hundreds of years. The student even of Black- 

 stone 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. 



