restoring peace and establishing the national authority, being at the time free from arrest, confinement, or duress, and not under bonds, are entitled to all the benefits and rights so freely and benignly given by a magnanimous Government. Where the oath has been taken without the purpose of restoring peace and establishing the national authority, though taken promptly, it seems tome that the amnesty and pardon do not attach. This, however, is a judicial question, which the courts may decide contrary to my opinion. I ought not, perhaps, to express any.
In giving this construction to the amnesty proclamation, I have been constantly impressed by a paragraph in the last annual message of the President of the United States. It reads as follows:
A year ago general pardon and amnesty, upon specified terms, were offered to all, except certain designated classes; and it was, at the same time, made known that the exempted classes were still within contemplation of special clemency. During the year many availed themselves of the general provision, and many more would, only that the signs of bad faith in some led to such precautionary measures as rendered the practical process less easy and certain. During the same time, also, special pardons have been granted to individuals of the excepted classes, and no voluntary application has beenractically, the door has been for a full year open to all, except such as were not in condition to make a free choice; that is, such as were in custody or under constraint. It is still open to all. But the time may come-probably will come-when public duty shall demand that it be closed, and that, in lieu, more rigorous measures than heretofore shall be adopted.
A profound respect for the opinions of that great and good man, Abraham Lincoln, late President of the United States, induces me to ponder long and well before I can venture to express an opinion differing even in a shade from his. But all who had the good fortune to know him well must feel and know that, from his very nature, he was not only tempted but forced to strain his power of mercy. His love for mankind was boundless, his charity was all-embracing, and his benevolence so sensitive that he sometimes was as ready to pardon the unrepentant as the sincerely penitent offender. Clearly and pointedly does the above paragraph show to the world that such was his nature. He says:
During the whole year that special pardons have been granted to individuals of the excepted classes, no voluntary application has been denied.
The door of mercy to his heart was, we know, ever open; and yet he closes the paragraph with this significant sentence:
But the time may come--probably will come--when public duty shall demand that it be closed, and that, in lieu, more rigorous measures than heretofore shall be adopted.
It is probably fair to infer that the President understood his proclamation of amnesty as giving pardon to all, no matter how long they had refused, and whether they had offended after notice of the offer or not. Whether his powers extended so far is, to say the least, a doubtful question.
I am clear and decided in my conviction that the President has no power to make an open offer of pardon which could be relied upon as a protection for offenses committed after notice of the offer. This opinion is induced from principle, and independently of the language of the proclamation.
The language of the first proclamation is, however, consonant with this opinion. It is addressed, "to all persons who have participated in the existing rebellion"--words referring to the past.