1865 June 10: Attorney General Speed’s Opinion on the Amnesty Proclamation
This article on U.S. Attorney General James Speed’s legal opinion on comes from the June 10, 1865, issue of The Prescott Journal.
Opinion of Attorney General Speed.
WASHINGTON, May 30.—Attorney Gen. Speed has given an elaborate opinion in reference to President Johnson’s letter of the 21st April last. He argues that the right and power of the President to pardon and to issue any proclamation of amnesty, are derived from the clauses in the Constitution, and the act of Congress, which he questions. The high and necessary power of extending pardon and amnesty, can never be rightfully exercised, so as to enable the President to say to offender’s against the law, “I now offer you a free pardon for the past or at any futurd [sic] day, when you shall, from baffled hopes, or after being foiled in dangerous and bloody enterprises, think proper to except.” I will give you a pardon for the then past. When men have offended against the law, their appeal is for mercy, not for justice.
He proceeds to consider the questions propounded by President Johnson, in the Proclamations dated respectively on the 8th of December, 1863 and 24th of March, 1864, commonly received the amnesty proclamation. No doubt, he says, many persons did, between those periods, take the oath, who could not have done so had the original proclamation continued.
The exceptions set forth in the second, what the rights of those who took the oath in that intermediate space of time, and who could not have taken the 26th of March, 1864, is purely a judicial question. The facts in such cases are accomplished, and the rights arising out of these facts, have attached and become vested.
The Att’y General, after considering the proper operation and effect of the tax proclamations comes to the conclusion that another proclamation should be issued. Persons, he says, should not be invited to take an oath and to comply with the terms under which they cannot obtain from legal rights. It is especially to those who have heretofore and would now avail themselves in good faith of the benefits of pardon and amnesty, that another proclamation should be substituted, covering the law past.—Persons who have been constantly engaged in the rebellion should know distinctly what they are to do, when and how they are to do it, to fall themselves from punishment in whole or in part, or to such as have been affected merely by their treasonable associations should be forgiven, and an appropriate condition should be appended to the pardon of many. The grace and favor of the government should now be large and generous, and effect of its profered [sic] mercy should not be left uncertain.
As a measure to aid in the suppression of the late rebellion, the late proclamation has done its full and complete office. No one is desired to aid in restoring order, and reorganizing society in the rebellious states. Re-construction is not needed. That conveys an eroneous [sic] idea. The construction of the government is as perfect as human wisdom can make it. The trials to which its powers and capacity have been subjected in this effort of revloution [sic] and dismemberment, is the task to prove principles and powers clearly and well defined, and that have carried us safely through our past troubles. Ours is not a duty to re construct or to change society in the rebel states, that has not been, is not now, in a normal condition, nor in harmony with the principles of our government. That society has rebelled against them, and made war upon the principles and powers of our government. In so doing, it has offended, and stands a convicted culprit. Mercy must be largely extended, some of the great leaders and offenders must be made to feel the extreme vigor of the law, not in a spirit of revenge, but to put the seal of infamy upon their conduct. But the mercy extended to the great mass of the misguided people can and should be used as to reorganize society upon a loyal and freedom loving basis. It is manifest for their good and the good of mankind, that this should be done. The power of pardon and mercy is adequate to this end. Such condition, precedent and subsequent, can legally and properly be appended as will root out the spirit of rebellion, and bring society in those states in perfect accord with the wise and thoroughly tried principles of our government. If this power of pardon is wisely used, peace will be established upon a sure and permanent basis.