Page:The American Cyclopædia (1879) Volume I.djvu/462

 430 AMNESTY have issued several proclamations of amnesty to those who participated in it on the rebel side. President Lincoln issued the first of these proclamations on Dec. 8, 1863. President Johnson issued similar proclamations on May 29, 1865, Sept. 7, 1867, July 4, 1868, and Dec. 28, 1868. Some of these proclamations were limited and conditioned, but the later ones were more liberal, and the last named was very broad and unqualified. With especial reference to this last paper, the question was mooted whether the president, in mere virtue of his office, and without the concurrence of congress, had constitutional authority to order a general am- nesty ; and in a report of the judiciary com- mittee of the senate made in February, 1869, the authority was emphatically denied. The position taken in this report was rested on two grounds : first, that from the time at least when England had a constitution and settled juris- prudence, the crown did not assume to have a power to grant general pardon or amnesty by its mere proclamation, and without the concurrence of parliament, but that such power was regularly and properly exercised only by statute ; second, that for hundreds of years there had been a clear distinction in the English law between pardon and amnesty, and that because the constitution used only the former word it must be understood to withhold from the president the power of granting general amnesty. In reference to the power of pardon our constitu- tion is very clear and precise : " The president shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." The question is, under this constitutional provision, what does its word pardon mean ? Does it include such a power of offering general amnesty as these proclamations have assumed to give? It is true that, in very many of the instances, though by no means in all, in which general pardons have been granted in England, they have issued in the form of acts of parliament. But even in these the tenor of the statutes, and the proceedings attending their enactment, concede that the act of grace proceeds from the sover- eign alone, and not from parliament. Thus in the acts of 25 Charles II., ch. 5 (1678), after the restoration; of 2 William and Mary, ch. 10 (1690), and of 6 and 7 William III., ch. 20 (1694), after the revolution of 1688; of 3 George I., ch. 19 (1717), relating to the insur- rection in Scotland in favor of the pretender ; and of 20 George II., ch. 52 (1747), after the second rebellion in Scotland, the title of each runs: "An act for the king's (or sovereign's) most gracious, general, and free pardon." The prerogative of the crown in respect to pardon has also always been recognized in the peculiar char- acter of the bill, even when the pardon goes by act of parliament ; for, unlike other bills, it is regularly signed by the sovereign before it is introduced into the houses, and it is read but once in either of them ; and when it receives the assent of the houses, this is not signified in the usual form of concurrence, but " the pre- lates, lords, and commons, in the name of all the sovereign's subjects, most humbly thank his majesty," &c. With regard to the fact that pardons so often issued by statute, it should be remembered that there were usually very sub- stantial reasons for the participation, in a certain sense, by parliament in the sovereign's act of grace, in the fact that a parliamentary act could relieve forfeitures and remove certain other disabilities attending attainders, which a mere pardon could not do ; and provisions to this effect were generally introduced into these acts. The fact, therefore, that in any instance a general pardon or amnesty appears to have been granted in the form of an act of parlia- ment, does not of itself imply any denial of the crown's sole prerogative power as to the pardon. More than this, there will be found repeated instances in English history where the sovereign has granted amnesties by general proclamation independently of parliament, and the competency and validity of such acts have never been disputed. In short, so far as the law and practice existed in England before and down to the time of the foundation of our government, it seems to be beyond question that the power of pardon rested finally in the sovereign, and that his grants of gen- eral amnesty were conceived to be included in the general power. As to the objection that there was a difference in th 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 books. On the other hand, pardon is a technical term of the law, and is almost ex- clusively employed. It may be safely admitted that, in allusion t8 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, amnes- ty 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 identi- cal. As to the suggestion that the use of the word pardon in the constitution implies a de- sign to exclude amnesty, it would seem to be completely refuted by the history of the de- bates 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 ex- pressly debated in the conventions. The 74th number of the " Federalist " is even more con- clusive 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