Attorney General Berrian, October 12, says, "A variety of considerations seem to me to render it inexpedient generally to interpose the pardoning power previous to trial. It is not denied, however, that cases may exist in which such an interposition would be proper."

Of course, Mr. Berrian must be presumed to refer to minor and unimportant cases, in which the public interest and safety would not suffer, where there were greatly extenuating circumstances or doubt about the guilt of the parties, when he speaks of cases that MAY EXIST.

Attorney General Cushing, April 15, 1853, says, "The President has the power to pardon before conviction. But there must be satisfactory evidence as to the guilt of the party; and it has been held unwise and inexpedient, as a general rule, to interpose the pardoning power in anticipation of trial and condemnation, although particular circumstances may exist to justify such an exceptional act on the part of the President."

Recollect that none of these cases had reference to any crime of a very serious nature where it is said cases may exist, or particular circumstances may exist, etc., etc.

But I have reserved the most important and authoritative opinion, against which no Southern Democrat can raise his voice, for the last. December 28, 1831, Attorney General Roger B. Taney said, "I do not, however, agree with you in deriving this power (to discontinue judicial proceedings) to the President from that clause in the Constitution which authorizes him to grant pardons, and reprieves. This is a specific grant of power which can not be extended beyond the fair import of the words. He can pardon or reprieve only when an offense against the law has been established by proof" (legal proof, of course) "or by the admission of the party" (in open court, of course, as in the case of treason), “and the penalty thereby incurred."

I can not find or hear of a case in which in any Federal court the question has been adjudicated whether a pardon can properly be granted by the President before trial and conviction, and the attorneys quoted above would all seem to think not, as a general rule. Mr. Wirt thinks the confession should be in writing, and the pardon founded on the specific offense confessed; in other words, says Mr. Wirt, it should be a special pardon, so as not to protect the party against a prosecution for a more aggravated offense than he has thought proper to confess.

The question may well be asked, What offense have any of these reconstructed gentlemen confessed? That they have been guilty of treason? Surely not, for they deny it; they have only confessed that they were ex

cluded from the benefits of the proclamation of May, 1865, by such or such a clause-and most generally the $20,000 clause-and it will be found that it is their property that has been pardoned, which, in the language of Mr. Wirt, can not protect them against a prosecution for the more aggravated crime of treason.

Mr. Berrian and Mr. Cushing both oppose the exercise of the power, but admit that cases may exist, or circumstances may exist to justify “such an exceptional act," and this I am willing to concede. It would not be difficult to conceive a case in which the public interest, or justice to parties accused, might justify a stretch of power, and this is done every day, perhaps, in every department of the government; but this does not establish the law to be exercised in the most flagrant cases and most aggravated offenses.

Attorney General Taney, afterward Chief-justice, utterly denies the power, and says it can ONLY be exercised when an offense against the law has been established by proof or the confession of the party, and the penalty thereby incurred—all of which could be reached only by trial and conviction.

But since the above was written I have found still better authority in an opinion of Chief-justice Marshall, to which all must yield respect, if not obedience.

The opinion I found recorded in the American Encyclopædia, under the head of pardons.

*

"A pardon," said Mr. Marshall, "is not an act of justice, but of grace. Pardon necessarily implies punishment, and punishment in all well-ordered states, at least, supposes guilt ascertained in the due course of law, and justly visited with a penalty. ** ** The theory is that the courts have the monopoly of doing justice, that is, if the impartial and exact application of law, which are intended and supposed to dispense justice, does, in fact, accomplish that end; so, theoretically, it must be assumed that he is guilty whom the courts declare to be so, and that the penalty inflicted is justly inflicted.' He farther says, "The ultimate power, the real sovcreignty, whether it reside in a king or in the people, as it is the source of the law, so it would be the source of grace to him who breaks the law. In the forms of government which have most prevailed, the crowned prince has been regarded as sovereign. In democratic states the people 'is' sovereign. The Constitution of the United States gives the power to the President alone. Now a pardon presupposes guilt and just condemnation, and works a suspension of the sentence, and defeats and annuls sO FAR

the law which pronounced it. But it is the first principle of the best form of government that the law must be supreme.

"Now if the judgment which the law passed upon the offender consisted exclusively in fine and imprisonment (or confiscation), remission of them does, in fact, restore him to full enjoyment of all his civil rights," but of course could neither suspend nor repeal the enactments of law, such as the test-oath, nor override the provisions and requirements of a State Constitution. But Judge Marshall proceeds: "but when infamy attaches, by particular laws, to the conviction, as it does in the case of felonies, forgiveness of the fine, and imprisonment only," as (confiscation of property) by no means makes the pardoned equal with the innocent. In short, the pardon is partial, or, it were perhaps better to say, IT IS NO

PARDON AT ALL.

Can any one doubt what would be the decision of the Supreme Court if any one of these cases should be carried up to that court?

Now, then, I may be asked for what good purpose have I opened up, or propose to open up these cases, and I answer, I propose to show to these gentlemen what is held by some of the best lawyers in this country to be sound, incontrovertible law in their cases; that they are not yet far enough out of the woods to put on all these airs of superiority and lordly dictation to those who have rights in this government superior to their own; to show them that they stand on dangerous ground, with a mine beneath; and that they can not and will not be permitted to frown down, or crush down, to trample down, to vote down, to write down, or to put down in any way the Union men of the South, who have it in their power to place them in a far worse condition than they have yet occupied from the beginning of the rebellion, and in a far worse condition than they can place the Union men, either by voting them out of office, or otherwise oppressing or harassing them. As for their social distinctions, let them be kept up to their hearts' content. Nobody cares, I suppose, to associate with any of those who prefer other society. This pretension and arrogance is too ridiculous and contemptible to produce any other feeling than that of pity and derision. If this disposition proceeded from the pride of the conquered, it might be respected; but when it proceeds from bad taste, bad temper, bad feeling, and worse judgment, I should despise the man or woman who would stoop to conciliate it. They have the right to do it, but those who encourage it stand much in the way of their own interests, and the interests of the state, when we should all work together for the common good; but they can be permitted no longer to treat Union men

with indignity, nor to stigmatize them as traitors, for every such Union man has his remedy in his own hands. If any man calls me a traitor, or thinks me one, I challenge him to a trial of the question; let him make an affidavit against me, and I will return the compliment to him, and have the question tried. I will promise to plead no pardon in bar that I have crawled to the footstool of power to solicit.

Do you ask me what this remedy is? I will tell you. Suppose the loyal men refuse to pay the taxes imposed by the body now in sessionand I give timely notice now that I will not pay one dollar of tax imposal upon me on the ground, first, that the Legislature is not a lawfully and constitutionally constituted body, and, second, that it is composed in part of aliens, whose pardons are of no avail, and who have no more right to tax me than a Mexican Legislature would have. The sheriff scizes my property, and I apply to the judge for an injunction and appeal to the law for protection; he grants the injunction, and he decides that they did or did not comply with the provisions of the Constitution, that they were or were not aliens, and that the pardons were or were not granted in accordance with the provisions of the Constitution. The case is carried up to the Court of Appeals, and from there to the Supreme Court of the United States. Here is a case made for the Supreme Court, and suppose they decide that the pardons are good for nothing. Then all any citizen has to do is to go before a magistrate or district judge of the Fedcral court and make oath that such a party has been guilty of treason, and demand a warrant for his arrest-and he is bound to issue such warrant-and bring him to trial, when the pardon can be plead in bar, and thus bring it to the Supreme Court for adjudication.

Now I want to be understood. Not a pardon has been granted that I desire to see revoked. There is no man that I have cared to see pronounced an alien by the law, provided full justice is done to the Union men, of whom there are from thirty to fifty thousand in this state, and who would openly proclaim it if it were not for the terror of public opinion and the fear of denunciation from the public press; but if there were but a handful, a baker's dozen, or if I stood alone, I would demand it for myself. Therefore I call upon every Union man in the state, and in the South, to stand up for their rights without fear, and say to all who would withhold them, "stand from under."

Of course I must expect to hear a general howl and volumes of abuse from the "reconstructed," but I am so used to this that it does not hurt; and if they knew what contempt I feel for all such trash they would save

their wrath, and bottle it up for somebody else that would feel it more than I do. I once heard it said that if a man throws a stone in the dark, and he heard a dog howl, you might be sure it hit him. This much in anticipation of what is to come.

This thing has to be stopped, or I pledge myself to bring the whole matter to a judicial decision, as I said before, if it costs me half that I am worth in the world if it is not. "Verbum sat inpresenti."

I am very respectfully and truly your friend,

JOHN M. BOTTS.

THE SECOND LETTER.

On the morning this letter was published in Richmond, "Mr. Garnett," the member of the Legislature, to whom it was addressed, rose to a personal explanation, in the course of which he said,

"The letter being addressed to me, it might be supposed that I coincided in the opinions, or sympathized in any way with the views expressed, neither of which have my approbation; but I repudiate both the one and the other," to which the following reply was made:

TO MUSCOE GARNETT, Esq. :

Auburn, Culpepper County, March 1, 1866.

It was very much the habit of Mr. Clay when he offended his friends, which he not unfrequently did, by way of apology, to say, "Well, if a man can not take liberties with his friends, who the devil can he take them with?" I suppose it was on this principle that, on the 24th ultimo, you took what I must think the most uncalled-for and unwarrantable liberty of dragging me before the legislative (so-called) body to arraign me for opinions expressed in a letter to you in terms that might well have been left to those who set up no pretensions of friendship. It would have been quite time enough for you to refuse to indorse for me when I had asked you to put your name on my paper. You must, therefore, excuse me for acting on the same principle with you, by taking the same liberty you have taken with me. How long has it been since it was understood that a person to whom a letter was addressed was responsible for all that the letter contained? In what school has such a principle been affirmed? God forbid that I should be held responsible for all letters I receive. If I were, I should be for Mr. Johnson and against him; for Congress and against it; for the emancipation proclamation and against it; for negro suffrage and against it; and for every conceivable shade of opinions that can be held by the great number of persons who think proper to address me, and furnish their views of the multitude of vexed questions which agitate the public mind.