Amnesty. Part 2
As to the objection that there was a difference in the English law between amnesty and pardon, it seems to be less sound than the other. Amnesty was never a specific term of the common law. and indeed it rarely occurs even in the statutes or text hooks. On the other hand, pardon is a technical term of the law, and is almost exclusively employed. It may be safely admitted that, in allusion to great classes of offenders rather than to individuals, and to the political offences involved in seditions and rebellions in distinction from the more usual crimes, amnesty as a word of description is more apposite and familiar than pardon. But this mere use of language does not reach the core of the thing, and it seems to be beyond dispute that the essential nature and operation of amnesty and of pardon in a legal sense are precisely identical. As to the suggestion that the use of the word pardon in the constitution implies a design to exclude amnesty, it would seem to be completely refuted by the history of the debates upon the constitution. (See Elliott's "Debates," vol. iii., p. 497; vol. v., p. 480.) The discussions there reported show that the very questions of the expediency of reposing the power in the president in cases of political offenders, and it may fairly be said of giving him the power of general amnesty, were expressly debated in the conventions.
The 74th number of the " Federalist" is even more conclusive upon these points. Hamilton says there that "the expediency of vesting the power of pardoning in the president has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one or both of the branches of the legislative body. . . . But there are strong objections to such a plan. It is not to be doubted that a single man of prudence and good sense is better fitted in delicate conjunctures to balance the motives which may plead for and against the remission of the punishments than any numerous body whatever. It deserves particular attention that treason will often be connected with seditions, which embrace a large proportion of the community, as lately happened in Massachusetts [Shays's rebellion]. . . . But the principal argument for reposing the power of pardoning in this case in the chief magistrate is this: In seasons of insurrection or rebellion there are often critical moments when a well timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth, which, if suffered to pass unimproved, it may never be possible afterward to recall.
The dilatory process of convening the legislature or one of its branches for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity." Before this question about amnesty to rebels arose, or rather before it was made a subject of debate and dispute, the constitutional power of the president as to pardon was construed as embracing all the significance which the word usually had in the English law; and this was large enough to include amnesty in the sense now under consideration. Chief Justice Marshall defined pardon very early as "an act of grace proceeding from the power intrusted with the execution of the law, which excepts the individual on whom it is bestowed from the punishment which the law inflicts for a crime he has committed." Story, in his "Commentaries on the Constitution" (§ 1,500), gives the broadest scope to. the power, and indeed he expressly includes in it the power of granting amnesty to rebels, and adopts, without suggesting any doubt of its pertinency and conclusiveness on this head, and as "the chief argument for reposing the power of amnesty in the president," the language on that point above quoted from Hamilton. The early history of the government furnishes significant illustrations of the opinions then prevailing as to the purport of the constitutional grant.
In three instances at least within the first quarter of a century after the formation of the government, the president granted general pardons by proclamation without the participation of congress. The first of them was made by Washington, July 10, 1794, in respect to persons who took part in the " whiskey insurrection " in Pennsylvania. By this he granted a full, free, and entire pardon to all persons, with certain exceptions, of all treasons, misprisions of treason, and other indictable offences against the United States. On May 21, 1800, President John Adams proclaimed a general pardon to all persons who had been engaged in the socalled house-tax insurrection in Pennsylvania in 1798. Again, in February, 1815, President Madison proclaimed a general pardon to certain persons known as the "Barataria pirates." It is the clear opinion of those legal authors who have discussed the question that the constitutional grant was intended to convey the largest power implied in the word pardon, and that it justified such proclamations as have been referred to, and which were issued in virtue of its assumed authority. - Since the civil war the conditions of the question have been in some respects materially changed.
When President Lincoln issued his first proclamation, an act of congress existed, that of July 17, 1862, by which congress had authorized the president at any time thereafter, by proclamation, to extend pardon and amnesty to persons who might have participated in the rebellion in any state or part thereof, with such exceptions and at such times and on such conditions as he might deem expedient for the public welfare. But it appears from the tone of the proclamation itself that the president did not conceive that he derived his capacity from this act, either wholly or even in part. For the preamble runs: "Whereas in and by the constitution of the United States it is provided that the president shall have power to grant reprieves and pardons," etc, and " whereas the congressional declaration for limited and conditional pardon accords with the well established judicial exposition of the pardoning power, I do proclaim," etc. In speaking of the act of 1862 as a "declaration for limited and conditional pardon," the president, it may be assumed, was not giving to the act all the dignity and virtue which congress would have claimed for it. It was in fact a direct intimation that the act was of no effect whatever.
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