Page:The American Cyclopædia (1879) Volume I.djvu/463

AMNESTY 431 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 com- munity, as lately happened in Massachusetts [Shays's rebellion]. . . . But the principal argu- ment for reposing the power of pardoning in this case in the chief magistrate is this : In sea- sons 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 pro- cess of convening the legislature or one of its branches for the purpose of obtaining its sanc- tion to the measure, would frequently be the occasion of letting slip the golden opportu- nity." Before this question about amnesty to rebels arose, or rather before it was made a subject of debate and dispute, the constitu- tional 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 am- nesty 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 be- stowed from the punishment which the law in- flicts 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 pow- er 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 am- nesty 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 govern- ment, the president granted general pardons by proclamation without the participation of con- gress. The first of them was made by Wash- ington, 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 so- called house-tax insurrection in Pennsylvania in 1798. Again, in February, 1815, President Madison proclaimed a general pardon to cer- tain persons known as the " Barataria pirates." It is the clear opinion of those legal authors who have discussed the question that the con- stitutional 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 vir- tue 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 tune thereafter, by proclama- tion, 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 proclama- tion itself that the president did not conceive that he derived his capacity from this act, either wholly or even in part. For the pream- ble runs: " Whereas in and by the constitution of the United States it is provided that the pres- ident shall have power to grant reprieves and pardons," &c., and " whereas the congressional declaration for limited and conditional pardon accords with the well established judicial ex- position of the pardoning power, I do pro- claim," &c. In speaking of the act of 1862 as a "declaration for limited and conditional par- don," 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 hi fact a direct intimation that the act was of no effect whatever. 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 origi- nal provision of the second article. The case of ex parte Garland, which is the only recent case that touches the subject, was before the su- preme 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 argu- ment to the effect of that act, but the petition- er's counsel quoted the language of the consti- tution, 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