14

15

Only one subsequent " federal, majority opinion case, has cited Brown v. Walker for the proposition that Congress has the authority to enact amnesty legislation. In 1925, the Circuit Court of Appeals for the Ninth Circuit, in holding that the Prohibition Act of 1925 did not infringe the President's pardoning power, cited Brown to the effect that:

"It is also held that Congress may grant amnesty to offenders of a certain class."

99 16

While occasional, unrelated references to the amnesty discussion in Brown occur," the substantive issue of congressional authority in relation to amnesty, has not arisen in any case which has required a definitive determination of the question.

In addition to Court decisions on the question of congressional authority, it should be borne in mind that Congress, itself, has, on several prior occasions, in fact enacted amnesty legislation. None of the Acts resulted in litigation on the precise issue of congressional authority. On July 17, 1862, Congress authorized the President to extend pardon and amnesty to persons participating in the rebellion. When President Lincoln granted the amnesty of December 8, 1863, he disclaimed necessity for the authorization. He began his proclamation by saying: "Whereas in and by the Constitution of the United States it is provided that the President shall have power to grant reprieves and pardons ... and very plainly showed that he based his authority to grant the proclamation upon the provisions of the Constitution and not upon the act of Congress." Congress later repealed its authorization."

In 1872, Congress enacted its first public law granting an amnesty." The General Amnesty Law of 1872 removed all political disabilities imposed by the third section of the Fourteenth Amendment from all persons except certain Senators and Representatives and civil and military personnel. A similar but more comprehensive measure was enacted in 1898.23 While these two acts may stand as examples of the Congress having already engaged in amnesty legislation, it should be noted that the authority for both bills derived from section three of the Fourteenth Amendment itself." This fact could negate any reference to the acts as precedent for the proposition that it is within the inherent power of Congress to enact amnesty legislation.

It can be seen that the indirect nature of the Supreme Court's Comments in Brown together with a dearth of case of law subsequent thereto, causes at least a question as to the weight which a contemporary court would attach to Brown.

tional Law of the United States (2d ed. 1929), III 1429: "Though Congress has thus no power to limit in any way the exercise of the pardoning power by the President, it may itself exercise that power to a certain extent, if exercised prior to conviction. Thus acts of amnesty have been held valid." Note, 34 Lawyers Reports Annotated 254 (1905): "While the special Acts of Congress granting pardon or amnesty have not been brought into the Courts for an adjudication of their constitutionality, there is a declaration in favor of the Power of Congress to pass Acts of general amnesty.

14 Prior to Brown, a district court in Illinois discussed the same statute at issue in Brown and flatly declared "It is a statute of pardon." U.S. v. James, 60 F. 257, 265 (D.C.N.D. Ill. 1894). The Court so decided without discussing Congressional power to enact such a statute in light of the constitutional grant of pardoning power to the President.

15 A dissenting opinion of Justices Holmes and Brandeis in Springer v. Phillipine Islands, 277 U.S. 189. 211 (1928) cited Brown as follows: "It [Congress] has granted an amnesty, notwithstanding the grant to the President of the power to pardon."

16 Nix v. James 7 F. 2d 590, 593 (9th Cir. 1925). See also U.S. v. Price 96 F. 960 (D.C. Ky. 1899) where the exact statute involved in Brown was at issue and the Court consistently referred to the immunity provision thereof as granting "amnesty," with a citation to Brown. Likewise see U.S. v. Moore 15 F. 2d 593 (D.C. Ore. 1926) analogizing Congressional grant of immunity to "Amnesty."

17 In Re Shead 302 F. Supp. 560, 563 (D.C.N.D. Calif. 1969): U.S. v. Reina 273 F. 2d 234, 235 (2d Cir. 1959); U.S. v. Swift 186 F. 1002, 1010 (D.C.N.D. Ill. 1911). 18 12 Stat. 592 (1862).

19 Humpert. The Pardoning Power of the President 40 (1941).

20 Note. 34 Lawyers Reports Annotated 251, 253 (1905).

21 14 Stat. 377. See 40th Cong., 3d session. S. Rept. No. 239 for the Senate Judiciary Committee's opinion that President was without power to grant amnesty absent Congressional authorization.

22 17 Stat. 142. (1872).

30 Stat. 432. (1898).

But Congress may by a vote of two thirds of each house, remove such disability."

(27.) AMNESTY: A BRIEF HISTORICAL OVERVIEW

(By John C. Etridge Foreign Affairs Analyst Foreign Affairs Division Library of Congress)

[February 28, 1972]

INTRODUCTION

In the years ahead the government and people of the United States will continue to face domestic social problems resulting in varying degrees from U.S. involvement in the Indochina war. One such problem that is now beginning to be discussed in the news media and Congress is amnesty for those who have refused to serve in the armed forces or have deserted from them. Seeking a legislative solution, some Members of Congress have expressed interest in the history of amnesties in this country and the extent of Congressional involvement in past amnesties.

Although a number of articles and studies of various aspects of amnesty have been written, a comprehensive treatment of amnesties in American history does not appear to exist. This paper is an effort in that direction, covering the highlights but not exploring the subject in depth. No attempt has been made to delve into the legal intricacies of amnesty; and the constitutional question of Congressional versus Presidental authority to grant amnesty, which arose after the Civil War, is treated only from the historical point of view.

As the reader will discover, amnesty is a rather complicated subject, hazy in concept and, at one point in American history, highly controversial.

Following a brief description of the concept of amnesty, the paper gives some examples of its use in Western societies, including a summary of federal amnesties in this country-with particular reference to those few occasions when Congress took an active role. Finally, the political and social significance of amnesty is touched upon, and there is a brief discussion of the factors contributing to increased public interest in amnesty in this country today.

WHAT IS AMNESTY?

Originating in a Greek term meaning forgetfulness or oblivion, amnesty has become a concept which implies "an act of the legal sovereign conceding, from grace, a voluntary extinction from memory of certain crimes committed against the state." ." la More simply, amnesty is the official act of overlooking a crime which was committed by a group of people.

The concepts of pardon and amnesty are interrelated. Historically, amnesty evolved from the general pardoning powers of ruling authorities. Pardon does not release the individual from guilt, but from the penalty imposed for a transgression of the law. Similarly, amnesty releases recipients not from guilt but from the penalty imposed by law. "It is a legal oblivion, usually of political offenses. However, only the criminal consequences of the absolved act are destroyed." 2

Pardon can be extended to any kind of offender and is usually granted after punishment for the crime has begun. Amnesty has usually been granted to political offenders, often before a trial or punishment has begun.

3

There are two types of amnesties. General amnesties cover all classes of offenders. Particular amnesties are limited to special groups, sometimes with specific exceptions.*

Whether general or particular, an amnesty can be "absolute" (imposing no conditions on the recipients) or "conditional" (demanding performance of cer tain conditions before entering into effect.) For example, Senator Taft's proposal (S. 3011) to grant amnesty to draft evaders who agree to alternate service, would be a particular, conditional amnesty.

1 The Civil War period is thoroughly treated in Dorris, Jonathan Truman. Pardon and Amnesty under Lincoln and Johnson. Chapel Hill, University of North Carolina Press, 1953. 459 p.

1a Encyclopaedia of the Social Sciences, vol. 1, New York, Macmillan, 1937, pp. 36-39. 2 Ibid, p. 36.

3 Political offense: "A violation of a law or of the public peace for public rather than private reasons, in contradistinction to a crime of moral nature, as murder, arson, or theft. which disturbs the general peace. Political offenders are usually not extraditable." Websters New International Dictionary of the English Language, 2d ed., Springfield, G&C Merriam Company, 1953, p. 1909.

4 Encyclopaedia of the Social Sciences, op. cit., pp. 36-39.

However, such formal classifications are not always observed, and descriptive phrases such as “general pardon and amnesty” and “universal amnesty” are used in a variety of ways by writers and statesmen. There is no accepted, standardized usage in American history.

SOME NOTABLE AMNESTIES IN WESTERN HISTORY

The first true amnesty usually cited by students of Western cultures occurred in 404 B.C. when Thrasybulus, an Athenian general, forbade punishment of Athenian citizens for past political acts. After expulsion of the Thirty Tyrants (who were excluded from the amnesty), Thrasybuius granted amnesty to all citizens in an effort to "erase civil strife from memory by the imposition of legal oblivion." Thrasybulus' action, whether or not it was the first, clearly possessed all the characteristics of amnesty as defined today.

Among the many amnesties in French history, the lettres d'abolition accompanying a truce between the Armagnacs and the Burgundians in 1413 were an early example. Rioters in Bordeaux were amnestied in 1549. The Edict of Nantes, issued by Henry IV in 1598, ended persecution of the Huguenots (French Protestants). Napoleon's imperial decree of 1802 and successive amnesties following the civil disturbances of 1871 and the Paris Commune were among the many 19th century French amnesty proclamations.3

Significant among amnesties in England were those granted in 1651 after the Civil War and in 1660 after the restoration of Charles II. Other notable amnesties-all required under peace treaties involving European powers-are outlined below.

The treaty of Osnabruck between the emperor on the one hand and Sweden and the Protestant states of Germany on the other (1648), and that of Oliva between the emperor, Sweden, Poland and the elector of Brandenburg (1660) provided not only that mutual wrongs should be consigned to oblivion but that property should be restored to all persons who had been dispossessed during the war. The final act of the Congress of Vienna in 1815 extended amnesty to Poles and Swedes, and the treaty of Frankfurt between France and Germany in 1871 limited amnesty provisions to the inhabitants of the territory ceded by France to Germany, though this was subsequently extended by special negotiations. The treaty of San Stefano, between Russia and Turkey in 1878, contained the unusual provision requiring Turkey to extend amnesty to its own subjects compromised during the war. The peace of Vereeniging ending the Boer War in 1902 provided amnesty for Boers who accepted British nationality with the exception of a list of Boer officers who were to be tried for violations of the law of war.*

Some of the European countries granted amnesties to political prisoners after World War I. On January 13, 1920, the Senate asked the Secretary of State to provide information on the amnesty policies of the wartime allies. Acting Secretary Polk responded by providing the texts of French, Italian, Belgian and Canadian amnesty documents and a statement explaining the British Government's negative position on the question. Also that year two resolutions were introduced in the Senate advocating amnesty for political prisoners, the most famous of whom was Eugene V. Debs, imprisoned for "pacifism in violation of the 1918 Espionage Act." His sentence was commuted by President Harding in 1921, but his citizenship was never restored.R

In December 1920 the Senate held hearings on amnesty for political prisoners, but no report was issued and no further Congressional action ensued.

After World War II, France, Norway, Germany, Belgium, Japan, and the Netherlands granted amnesties or pardons to some who had been engaged in compromising activities. More recently, after De Gaulle resolved the Algerian conflict, a general amnesty was granted to most of those who had illegally resisted the French government's policies.

1 Ibid., p. 37.

Encyclopedia Britannica, v. 1. Chicago, William Benton, 1964: 809.

3 Encyclopaedia of the Social Sciences, op. cit., p. 31. Encyclopaedia Britannica, op. cit., p. 807.

U.S. Congress. Senate. Amnesty to Prisoners Since the Armistice. Messages from the President . . . Transmitting. . a Communication from the Acting Secretary of State March 1 and March 11, 1920, 66th Congress, 2d session. Senate Documents no. 241 and

249.

Encyclopaedia Britannica 1. 7, op. cit., p. 137.

U.S. Congress. Senate, Committee on the Judiciary. Amnesty and Pardon for Political Prisoners. Hearings. Washington, U.S. Govt. Print. Off., 1921. 198 p.

8

› Encyclopaedia Britannica, op. cit., p. 808.

80-620 O - 72 - 43

AMNESTIES IN AMERICAN HISTORY

In many countries the power to grant amnesty rests with the legislature rather than the executive. In the United States, however, it has been the President who has exercised such power. Virtually all amnesties have been issued by or in the name of the Chief Executive, although some have been in response to Congressional initiative. Presidential authority to grant pardons and amnesties is derived from the constitutional provision that the "President . . . shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." 1

1

Congress has, however, attempted to assert authority in this regard, especially toward the end of the Civil War and in the years immediately thereafter. The question of Congressional authority to grant amnesty and pardon was considered by the Supreme Court in 1896. Although the case did not involve the issue directly, in Brown v. Walker (161 U.S. 591) the Court used language indicating that it could be assumed the President did not have exclusive authority to grant pardon and amnesty. The Court was also of the opinion that the distinction between pardon and amnesty was of no practical importance.

The following is a brief account of Federal amnesties in American history, based upon a review of James D. Richardson's "Compilation of the Messages and Papers of the Presidents" and upon Jonathan Truman Dorris' book, "Pardon and Amnesty under Lincoln and Johnson."

By pardoning participants in the 1794 Whiskey Insurrection, George Washington set a precedent for a succession of Presidential amnesties. On July 10, 1795, Washington proclaimed “A full, free and entire pardon to all persons . . . of all treasons, and other indictable offenses against the United States committed within the fourth survey of Pennsylvania before the said 22nd day of August last past. ..." Exceptions were made of those who "refused or neglected to give assurance of submission to laws of the United States; violated such assurances after they were given; or willfully obstructed or attempted to obstruct the execution of the acts for raising a revenue on distilled spirits... or by aiding or abetting there . . ."

The insurrection had reached a climax on July 17, 1794, when "several hundred men" attacked and burned the home of the regional inspector of the excise. Washington's pardon came a year later. In his explanation to Congress, the President said: For though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet my personal feeling is to mingle in the operations of the Government every degree of moderation and tenderness which the national justice, dignity and safety may permit."

In 1799 a band of over 100 Pennsylvanians, rebelling against the law for the valuation of lands and dwellings, freed the prisoners of a United States marshal and prevented him from carrying out his duties. On May 21, 1800, President Adams granted “ . . . a full, free, and absolute pardon to all and every person or persons concerned in said insurrection . . . of all treasons, misprisons of treason, felonies, misdemeanors, and other crimes by them respectively done or committed against the United States . . ."8

By the Proclamation of October 15, 1807, President Jefferson granted a full pardon to all deserters from the Army of the United States who would surrender themselves within a period of four months."

Prior to and during the War of 1812, proclamations offering "a full pardon" to deserters who surrendered within four months were issued by President Madison on February 7, 1812, October 8, 1812, and June 17, 1814. No exceptions were listed. President Madison also proclaimed an amnesty for the pirates and smugglers in the vicinity of New Orleans who helped fight the British."

1 Constitution of the United States. Article II, Section 2.

2 Dorris, Jonathan Truman. Pardon and Amnesty under Lincoln and Johnson. Chapel Hill, University of North Carolina Press,

3 Richardson. James D. Compilation of the Messages and Papers of the Presidents, vol. 10. New York, Bureau of National Literature, Inc., 1897, p. 173.

+ Ibid.

5 Encyclopaedia Britannica, op. cit., p. 571.

Richardson, James D., op. cit., vol. 1, p. 276–277.

7 Ibid.

Ibid., pp. 293–294.

Ibid., p. 413.

10 Richardson, James D., op. cit., vol. 2, p. 497, 499, 528.

11 Dictionary of American Biography, vol. 10, New York, Charles Scribner's Sons, 1966, p. 540.

President Jackson approved a War Department General Order of June 12, 1830, which extended "a free and full pardon" to deserters, subject to the following provisions: those in confinement were to be released and returned to duty; those at large and under sentence of death were to be discharged and never again enlisted in the service of the country.1

During the confusion at the outbreak of the Civil War many persons were detained by civil and military authorities. But on February 14, 1862, through Secretray of War Stanton, the President directed the release of many political prisoners and others held in military custody "on their subscribing to a parole engaging them to render no aid or comfort to the enemies in hostility to the United States." On February 21, a special commission was appointed to examine the cases of the state prisoners remaining in military custody and to "determine whether, in view of the public safety and the existing rebellion, they should be discharged or remain . . . for (civil) trial." 3

In the Confiscation Law of 1862 Congress authorized President Lincoln to extend pardon and amnesty to persons participating in the rebellion, imposing exceptions or conditions as he deemed expedient. Subsequent proclamations issued by Lincoln during this critical period acknowledged the statute but indicated that he did not consider it his sole source of authority."

By the Presidential Proclamation of March 10, 1863, deserters who reported on or before April 1, 1863, were restored to their regiments without punishment except for forfeiture of pay and allowances during their absence."

On December 8, 1863, President Lincoln declared in his proclamation: "Whereas it is now desired by some persons heretofore engaged in said rebellion to resume their allegiance to the United Staes and to reinaugurate loyal State governments . . . a full pardon is hereby granted to them and each of them, with restoration of all rights of property, except as to slaves and in property cases where rights of third parties shall have intervened . . .'

997

Each person was required to subscribe to and "maintain . . . inviolate" a prescribed oath of loyalty to the United States, Officers of the Confederate Government, former officers of the United States who joined the rebellion, and certain other classes of rebels were excepted."

In February 1864, the War Department mitigated the sentences of deserters from death to imprisonment, authorizing generals to restore deserters to duty whenever it was deemed beneficial to the service."

On March 26, 1864, Lincoln found it necessary to issue an additional proclamation defining the cases in which insurgent enemies were entitled to the benefits of the Proclamation of December 8, 1863. He declared that civil and military prisoners were not eligible but added that they might apply to the President for clemency "like all other offenders . . . ." The previous proclamation was held applicable only to persons at large who voluntarily took the oath "with the purpose of restoring peace and establishing the national authority.'

In his Fourth Annual Message in December 1865, Lincoln stated that although many had complied with the measure of the previous year, some had abused the amnesty, necessitating precautionary measures which made the process more complicated. However, special pardons had also been granted to individuals of the excepted classes, and no voluntary application had been denied."

An Act of Congress approved March 3, 1865, set forfeiture of citizenship as the punishment for desertion and required the President to issue a proclamation pardoning all deserters who returned to their proper posts within sixty days and served a period of time equal to the original term of their enlistment." Lincoln complied by issuing the Proclamation of March 11, 1865. Subsequently, the War

1 Richardson, James D., op. cit., v. 3. p. 1062–1063.

2 Ibid., p. 3304.

* Ibid., p. 3310.

Act of July 17, 1862 (12 Stat. 592).

5 In his Third Annual Message, December 8, 1863, Lincoln said: "The constitution authorizes the Executive to grant or withhold the pardon at his own absolute discretion. and this includes the power to grant on terms, as is fully established by Judicial and other authorities." Richardson, James D., op. cit. v. 7, p. 3388.