Mr. JOHNSON. Mr. President, if the measure upon your table, which proposes to repeal the 13th section of the law to which it refers, was supported by its friends upon the ground that that section gives no additional power to the President and is consequently simply void, I should not trouble the Senate with the remarks I am about to submit; but I understand it to have been the opinion of the friends of the original measure, and of course of the friends of the bill which is now upon your table, that that section is operative and does give the President powers which he has not under the Constitution. I propose, 1st, to examine the constitutional question; and 2nd ly, assuming that that question should be decided as I suppose the friends of the measure upon your table think it should be decided, to examine into the expediency of adopting this bill at this time. When the subject was before us prior to the recess, I asked my friendfrom Illinois, the chair: man of the ComJudiciary, 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 President by the Constitution cannot by legislation be taken from him; and for the same reason I have no doubt he would admit that it cannot be in any way limited or qualified . It is vested in him alone in his official capacity as President. he 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 th: is no necessity for it) it should be vested not in the President alone or in any of the depts 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 depts or some branch of one of the other depts. 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 must, 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 2 depts of such Government.. It must be iven to one to the exclusion of all others, and if given to one to the exclusion of all others the decision of one, whether to grant the pardon or to refuse the pardon, must be conclusive. In our Government the only possible control that Congress can have over offenses created by statute is after the offenses 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 rior to final judgment, to repeal the statute. he 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 exercise of the legislative power of Congress. Being alone authorized to pass the law which creates the offense 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 and all pending prosecutions at all. once The power, then, of the President to pardon is not only comprehensive of every variety of offense which may be subject to prosecution unless pardoned, but is granted to him in terms aso: 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 a 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 offenses which he professes to pardon. I understood my friendfrom Illinois the other day as stating that he owhen 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 am nesty by proclamation. I answered that the other day by suggesting that in the absence of any particular specification of the mode in othe 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 Dept. 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. at 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 dept 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 friendfrom Illinois referred, reported in 18 Howard, (where the immediate question before 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 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 friendfrom Illinois the English monarch from time to time has granted pardon and granted amnesty by proclamation; and the passage which I read from the 74th 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 pop." to repeal was then placed, and of course I am at a loss to imagine upon what the repeal of that section can be placed econsistent with the doctrine that, independent of that section, the whole power which the bection proposes to give is already in the Executive. I do not know, for he did not use it in connection with this particular question, whether my friendfrom Illinois is under the impression that what he supposes to be an absence of implied power in the Executive has any bearing on the question before us. In presenting some days since a memorial from certain persons claiming to be almost the exclusive loyalists of some of the southern States I understood the honorable chairman of the ComJudiciary, in contesting the authority of the President to organize governments in the States that had been in insurrection, to do it upon the ground that there was an absence of any implied power in the President, and that the only dept of the Government, which is clothed with a power of that kind is the legislative dept, and that that dept possesses it by virtue of the general clause which gives to Congress the power to pass all laws which may be necessary and proper to carry into effect the powers specifically delegated. In this, as I think, the honorable chairman is clearly in error. The clause to which he refers has no operation whatever. It was so considered by. authors of the Federalist in one of the numbers by which they endeavored to satisfy the people of the country that the Constitution should be accepted. It has been held to give no additional power to Congress by every commentator upon the Constitution who has written upon the subject since, and by the unanimous opinion of the Supreme Court in the case of McCulloch vs. the State of Maryland, reported in 4 Wheaton..Mr. Justice Story, in his Commentaries, 3rd volume, section 1232, in dealing with the meaning of this clause, says, in so many words that the authority of Congress without this provision would have been the same as it is with it. He tells us and we can all see the force of the proposition that the power to do anything vested in anybody of men, whether governmental or otherwise, is the faculty to do the particular thing, the right to choose any means proper to accomplish the end not expressly inhibited. A mere power without the means to execute the power would be an ah surdity; and consequently, as the power to ardon, or any other power conferred on the resident, or any power conferred upon congress to do anything without the authority in each to carry out the particular object for which the power was created, would be a gross absurdity. But my friendfrom Illinois is mistaken, as I think, on another ground, in supposing, if he does suppose, that with reference to this question there is a difference between Congress and the Executive. The powers conferred upon Congress in the very 1st section of the 1st article are stated to be only such as are therein delegated. The power conferred upon the President is stated in the very 1st section of the 3rd article to be “the executive power;” and if I am not mistaken, upon every occasion when the power of the Executive was called in question because trenching upon that of Congress, or when Congress claimed for itself a power which was supposed to trench, upon that conferred on the Executive, the difference in the terms in which the powers conferred upon the Legislature were conferred, and those in which the conferred on the President, were conferred, has been relied upon as conclusive for the purpose of showing, 1st, that in the one case no power can be exerted except such as is delegated expressly or by fair implication, and in the other that all power executive in its na ture, necessary to carry out the objects of the government as far as they are to be carried out through the instrumentality of the Executive, is vested in the Executive. That is stated with his usual felicity of language (and not contradicted by Mr. Madison in his reply) by Mr. Hamilton in the 1st number of his celebrated Pacificus letters. I will read a sentence or 2 from that letter. The question which he was discussing was the authority of the President by proclamation to announce to the world as well as to ourselves the determination of the U.S. to remain neutral in the war then being waged abroad. The authority of the President to issue that proclamation was at that time assailed with as much violence I will not say scurrility, for that is never used anywhere in these days as has been the action of the POTUS or the SCOTUS; and Mr. Hamilton, in meeting the objection that the power was not one which the President had the authority to use, said: “The difficulty of a complete enumeration of all the cases of executive authority would naturally dic State the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of pression employed exin the Constitution in regard to the 2 powers, the legislative and the executiye, serves to confirm this inference. In the article which gives the legislative powers of pressions are, All legislative thpeo Government the ex: herein granted shall be vested in a Congress of the U.S. ” In that which grants the executive power the expressions are, “The executive power shall be vested in a POTUS ” “The enumeration ought therefore to be considered as intended merely to specify the principal articles implied in the definition of executive power, leaving the rest to flow from the general grant, of that power, interpreted in conformity with other arts of the Constitution and with the principles of ree government. “The general doctrine of our Constitution, then, is that the executive, power of the nation is yested in the President, subject only to qualifications the exceptions and which are expressed in the instrument.” In the very able letters published by Mr. Madison in reply to the letters of Pacificus, he not only does not question the correctness of that doctrine, but almost in words admits it. And to refer to a judicial decision, not because any name could add to the name of Hamilton upon a subject of this description, in a judicial decision pronounced by Mr. Justice Nelson, since the war closed, in a case which was tried in the southern district of NewYork; the learned judge said that the authority which the President had exercised in the organization of governments in the southern States by means of E.governors with authority to call legislatures around them was justified by virtue of the executive power with which he was of othed, and that that continued until the war torminated; that occurring, that is to say on the termination of the war, the Constitution was replaced in all its integrity, and the States where insurrection had prevailed before and which had been under the supervision of those governments were thereafter to be governed exclusively by the people under State constitutions framed by themselves. And in substance such is the result to which, logically considered, the recent decision of the Supreme Court in the case of Milligan leads us. In the opinion of the majority of the court not to be surpassed, in my judgment, by any opinion pronounced by any judge in any former case in that tribunal it is stated that the Constitution was made as well for war as for peace; that there was no power whatever conferred upon the Executive or upon Congress during a state of war which would authorize them to transcend any of the specific guarantees contained in that instrument of the rights of the citizen or the rights of the States. Flagrante bello it might be in the power of the military commander, whoever he might be, leading the armies or of the POTUS, to declare martial law; but it must be confined to the necessity existing at the time and limited to the area covered by that necessity. That learned tribunal, speaking through Mr. Justice Davis, gets rid of the doctrine, as far as a judicial opinion can do so, which has been so much in vogue during the existence of the war, that Congress and the Executive obtain power during a war from necessity, independent of constitutional obligation. As well might it be contended, I think, that the judiciary of the U.S. could claim upon the ground of necessity a jurisdiction which the Constitution of the U.S. does not confer upon them. That being the case, the POTUS having the power to pardon, and that power from its very nature being exclusive of any authority over the same subject by congress, or if the power to pardon is not supposed to be in words given so as to authorize its exercise by means of a proclamation or so as to authorize the President to grant by proclamation what is called an amnesty, he possesses (at least as implied under the power conferred upon him to pardon) the power to do it by proclamation or to do it in the form of an am nesty. That there is any impropriety in granting a pardon or an amnesty in that form will hardly be pretended by Congress. The very section which. propose to repeal professes to give to the President that very power. congress, therefore, at that time, assuming as they did assume that it was with them to give the power, supposed that the exigency of the country at the moment required that the power should be exerted in the way in which they in terms authorized the President to exert it by proclamation or by amnesty. I would, therefore, as I said in the beginning, not for a moment question the propriety of repealing this section, if the friends of the measure supported it upon the ground that it conferred no power, because the whole power was already in the President. I have no doubt that the power is in the President, and if the AttyGen or his predecessor had lis tened to my opinion or advice, or if the present incumbent of the executive chair had done so, he would have exerted the power long ago. My opinion then was and I communicated it to the President, but with no avail, although he apparently agreed to its propriety that the true interest of the country demanded that he should declare a general amnesty, of course by proclamation, excepting, however, one or more cases as he might think proper in order to have the 2 questions tried which a trial of an parties who were engaged in the rebellion will necessarily present, namely: 1st, whether there exists in a State a right to secede; and 2nd, if there does not, whether in the case of the particular rebellion which culminated into a gigantic war, a war of such dimensions that the U.S. were obliged to consider the insurrections as public enemies, to deal with them as such, to treat with them as such, to exchange prisoners with them as such, persons engaged in it did not after such recognition in all respects with reference to the offense of treason stand in the same situation in which parties would be placed if charged with that offense who were warring against the U.S. when they had done so as the subjects of another nation in an international war. I thought then, and I think now, for that was my own individual opinion, that upon the 1st y these questions the opinion of the supreme Court would be unanimous. I have seen no reason to change that impression. Upon the 2nd I thought it quite doubtful what the opinion of the court might be. Some of the best jurists in the country, many of them members of the Republican party, some of the abiest jurists in England having no particular hostility to the U.S. of which I am aware, have expressed the opinion that the moment belligerent rights were acknowledged to belong to the confederacy the commission of treason became impossible. Some of the public men who belong to the Republican party, and who perhaps have been very instrumental in. i. it up, have so expressed themselves; among others, Mr. Gerritt Smith, whose honesty of purpose nobody who has considered his conduct and examined what from time to time he has given to the public can doubt, has expressed the same opinion in I believe more than one well considered and ably written letter. I am not, therefore, prepared to say what the opinion of the Supreme Court upon that question will be if it shall ever be presented to them; but upon the 1st question, which I deem it very desirable should be settled by the judicial determination of the highest court in the land, I entertain no doubt that that judgment will be against the right to secede as not only not reserved to the States, but as necessarily fatal to any union of States in which the right of a State to secede from it may be reserved. And the history of this bygone confederation illustrates that that must be the result of such a provision.