This section is from "The American Cyclopaedia", by George Ripley And Charles A. Dana. Also available from Amazon: The New American Cyclopędia. 16 volumes complete..
At all events, in his next message President Lincoln asserted his exclusive authority under the constitution, and his independence of congress in respect to the pardoning power, even more emphatically than in these proclamations. This provision of the act of July 17, 1862, was repealed on Jan. 21, 1867, the bill for its repeal having become a law by the omission of President Johnson to return it within the prescribed time; so that thenceforth, and until the constitution was amended, the power stood solely on the original provision of the second article. The case of ex parte Garland, which is the only recent case that touches the subject, was before the supreme court in 1866. Garland, the petitioner, had received in July, 1865, and of course while the section of the act of 1862 was in operation, "a full pardon and amnesty" for all offences. No particular reference was made on the argument to the effect of that act, but the petitioner's counsel quoted the language of the constitution, and relied on the broad construction given to it by Marshall and others.
The court in rendering its decision held that the power conferred on the president by the constitution was unlimited, with the single exception stated in it, and that it extended to every offence known to the law, and might he exercised at any time after its commission, either before legal proceedings were taken, or during their pendency, or after conviction and judgment; and it said further that the power was not subject to legislative control, and that congress could neither limit the effect of his pardon nor exclude from its exercise any class of offenders. Though this case is not decisive in respect to the power of granting general amnesty, as the proclamations which have been issued assume to do, the case being one of a special pardon, yet it is at least significant upon the point of the exclusive function of the president in respect to pardons in virtue of the constitutional provision, and against the claim that it is to be shared in any respect with congress. - In 1868 the constitution was changed by the adoption of the fourteenth amendment. This amendment introduced provisions which were thenceforth of a force and validity as high and controlling as the original provision itself, and the two articles are therefore now to be construed together.
From the considerations which have been already adduced, it should seem that it was believed that the claim of congress to participate in the pardoning power could be well disposed of only in this way. This provision, it will be seen, expressly brings within the reach and control of congress the cases of the most important offenders in the late war; but it does not, it is conceived, annul the power of the president to grant pardons and amnesties to others than those who are especially described, nor does anything in the amendment throw any light on the right construction of the power under the provisions of article second. As to all else relating to that power and its scope beyond that part of it which is reserved to congress by this amendment, we are remitted to the same general considerations and arguments which have been here suggested. The amendment (July 28, 1868) is in these words: "No person shall be a senator or representative in congress, or elector of president or vice president, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath as member of congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
But congress may by a vote of two thirds of each house remove such disability." - In January, 1872, in the case of Klein against the United States, the supreme court held doctrines which sustain the positions here taken in respect to the president's power to grant general amnesty under the original provision of the constitution. This case arose before the fourteenth amendment was adopted, and it involves the effect and validity of an act of July 12,1870 (16 U. S. Statutes, 235), by which congress had attempted to annul the benefits of pardon or amnesty granted by the president, especially with reference to suits by pardoned rebels in the court of claims. The claimant in Klein's case had done certain acts in aid of the rebellion, but he had accepted a pardon under one of the proclamations of amnesty, and had taken and not violated the oath of future fidelity which was prescribed by it. The act of July 12, 1870, provided that the acceptance of any such pardon should be conclusive evidence of the disloyal acts pardoned, and that on proof of such pardon and acceptance, and on account of the very disloyal acts so proved, the court of claims and the supreme court on appeal should decline jurisdiction of any suit on the part of such pardoned rebel.
But the court held that congress had no power to make any such law, and refused to enforce its provisions. With reference to the repeal in 1867 of the act of 1862 already referred to, Chief Justice Chase says that the repeal was made after, and he fairly implies in consequence of, the decision in the Garland case, where it had been held that the president's power of pardon was not subject to legislation, and that congress could neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The court also sustained the position assumed by President Lincoln in regard to his exclusive authority under the constitution. The court further held that "it is the intention of the constitution that each of the great coordinate departments of the government, the legislative, the executive, and the judicial, shall be in its sphere independent of the others. To the executive alone is intrusted the power of pardon, and it is granted without limit. Pardon includes amnesty. It blots out the offence pardoned, and removes all its final consequences. It may be granted on condition.
In these particular pardons" (that is to say, under proclamations of amnesty, for the case before the court was one of that sort), " that no doubt might exist as to their character, restoration of property was expressly pledged, and the pardon was granted on the condition that the person who availed himself of it should take and keep a prescribed oath. It is clear that the legislature cannot change the effect of such a pardon, any more than the executive can change a law. The court is required to disregard pardons granted by proclamations on condition, though the condition has been fulfilled, and to deny them their legal effect." This the court declined to do, and affirmed the judgment of the court of claims, which had awarded restitution to the claimant.