211

Although an amnesty or pardon "restores [the grantee] to all his civil rights," the restoration of rights is not absolute.210 A pardon or amnesty will not result in any compensation by the government for punishment suffered prior to the pardon or amnesty,2 nor will it affect any rights vested in a third party as a result of the pardoned offense.212 In addition, a pardon or amnesty will not restore certain legal rights. For example, the pardoned offense may be raised in some jurisdictions in order to impeach a witness213 or to reject an application for citizenship.214 Public offices which have been forfeited because of pardoned offenses might not be restored.215 Generally, however, the rights to vote, hold public office, and serve on juries, and most other basic rights attached to United States citizenship, are restored by a full pardon or amnesty, or by a pardon or amnesty declaring such rights to be restored.216 Obviously a pardon cannot prevent the operation of veiled social discrimination against the grantee such as ostracism or difficulty in obtaining employment.

B. Congress' Power to Enact Amnesties

The scope of Congress' pardoning power is less clear than the scope of the President's power, primarily because Congress has rarely exercised its power. r.217 In 1893 Congress enacted an amnesty granting immunity

210. See Williston, supra note 204.

211. Knote v. United States, 95 U.S. 149, 153-54 (1877) (dictum).

212. Id. at 154. Knote should be distinguished from Klein and Armstrong, supra notes 183-84, where the property petitioners sought had not vested in a third party but was being held by the U.S. Treasury pursuant to statute. See also W. Humbert, supra note 168, at 79; Cozart, The Benefits of Executive Clemency, 32 Fed. Prob. no. 2, 33 (June, 1968).

213. Bennett v. State, 24 Tex. Ct. App. R. 73 (1877); see Maguire et al., Evidence 321 (1965), and cases cited therein.

214. In re Spenser, 22 F. Cas. 921 (No. 13,234) (C.C. Ore. 1878). 215. State v. Carson, 27 Ark. 469 (1872).

216. Cozart, supra note 212. Of course, partial or conditional pardons or amnesty may, by their very nature, operate to deny legal rights. See, e.g., Ex Parte Wells, supra note 194, where the Supreme Court affirmed the pardon of a convicted murderer conditioned upon submission to life imprisonment.

For a list of those civil rights which are lost by convictions of various crimes, see Federal Probation Officers Assoc., A Compilation of State and Federal Statutes Relating to Civil Rights of Persons Convicted of Crime (1960).

217. Congress has granted amnesty only four times, and each of these amnesties was limited in scope. Three were partial amnesties removing only civil or political disabilities. Act of May 22, 1872, ch. 193, 17 Stat. 142 (removing political disabilities imposed by the third section of the 14th Amendment to the Constitution); Act of May 13, 1884, ch. 46, 23 Stat. 21 (lifting certain disqualifications on grand and petit jurors); Act of June 6, 1893, ch. 389, 30 Stat. 432 (removing all political disabilities imposed by the third section of the 14th amendment). One was a full amnesty benefiting a small class of persons. Act of Feb. 11, 1893, ch. 83, 27 Stat. 443 (providing for immunity from prosecution for persons testifying before the ICC).

from prosecution to all witnesses testifying before the Interstate Commerce Commission.218 In Brown v. Walker,219 the Supreme Court held that this act did have the full effect of an amnesty, and that a subpoenaed witness could not therefore be excused from testifying on the ground that he might incriminate himself. The court stated that although the Constitution vests the pardoning power in the President, "this power has never been held to take from Congress the power to pass acts of general amnesty.' ."220 The reasoning behind this conclusion was not made clear by the Court, although the Court implied that the amnesty power, commonly exercised by the English Parliament, had been traditionally derived from the legislature's "sovereign power.'

221

Certain questions with respect to the congressional pardoning power remain unanswered by the Supreme Court. For example, it is not clear whether Congress has the power to grant pardons in addition to amnesties. The concepts of pardon and amnesty are often clearly distinguished by scholars who place the individual pardon power in the province of the President alone222 by emphasizing the legislative character of an amnesty," ,223 which takes away the consequence of a particular offense without regard to who the offenders are. The predominant view, how

218. Act of Feb. 11, 1893, ch. 83, 27 Stat. 443.

219. 161 U.S. 591 (1896).

220. Id. at 601.

221. Id. Of course, Congress could not be said to have the same degree of "sovereign power" as the English Parliament, since in this country, unlike England, the legislature is subject to limitations imposed by the Constitution and the doctrine of separation of powers.

Whatever doubt might arise concerning Congress' power to grant an amnesty outright to draft evaders and deserters could probably be avoided if Congress were to make the amnesty ancillary to other Congressional legislation relevant to the change from wartime to peacetime. For Congress does have the power to abate prosecutions by means of legislation subsequent to the performance of unlawful acts. In Hamm v. Rock Hill, 379 U.S. 306 (1964), for example, the Supreme Court held that after the enactment of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2001a (1970), states could not prosecute participants in sit-ins even though the sit-ins preceded the enactment of the Civil Rights Act and were at the time unlawful under state law. Similarly, if Congress were to enact Congressman Koch's bills, notes 165 and 167 supra, broadening the scope of the conscientious objector (C.O.) status, it could presumably grant amnesty, or abatement from prosecution, for all draft evaders whose objection to the war would have placed them within the new C.O. status. And since it would be extremely difficult to separate this class of offenders from all others, Congress could grant amnesty to all draft evaders, as part of its enactment affecting the C.O. status.

222. See, e.g., Radin, Legislative Pardons: Another View, 27 Calif. L. Rev. 387, 391 (1939); Barnett, Executive, Legislature, and Judiciary in Pardon, 49 Amer. L. Rev. 684, 693-698 (1915).

223. It has been suggested that the procedure Congress would follow in granting an amnesty would be similar to its procedure in repealing or modifying a law. W. Humbert, supra note 168. For example, if Congress granted amnesty to draft evaders after determining that it was no longer just or expedient to enforce the punishment provisions of the Selective Service Act (50 U.S.C. App. § 462 (1970)), then Congress would, in effect, be repealing or suspending retrospectively that portion of the Act.

ever, seems to be that Congress' pardoning power includes both amnesties and pardons,224 since a distinction between the two has never been made in Anglo-Saxon law. Moreover, the Supreme Court has upheld, in The Laura,225 the remission of a fine by the Secretary of the Treasury pursuant to Congressional authorization.226 The Court ruled that the President's power to pardon offenses and remit penalties was not exclusive, and that Congress had frequently authorized subordinate officers to remit fines and penalties.227 Since the remission of a fine is nearly equivalent to a pardon,228 if Congress can delegate Government officials the power to remit fines, it seems to follow that Congress itself has the power to grant pardons.

Another question concerns the extent to which Congress can interfere with the President's exercise of his pardoning power.229 The courts have held that Congress cannot restrict in any way the effects of a presidential pardon.230 They have never said that if a President deliberates and decides against an amnesty, Congress may not enact one itself. It seems clear that both the President and Congress have certain pardoning powers; within the scope of their respective powers, each could expand on an amnesty granted by the other if it was deemed insufficient, but neither could limit the effects of the other's amnesty. The problems which might arise would probably be more political than constitutional.231

It should be noted, in conclusion, that from a practical point of view, the President is in a superior position to grant pardons and amnesties. He can command studies and assemble data more efficiently than Congress, and he can arrive at decisions quickly without making the sacrifices necessary in political bargaining.232 Perhaps this is why Congress has enacted so few amnesties, while American presidents have granted numerous amnesties throughout this country's history.

224. See, e.g., Weihofen, Legislative Pardons, 27 Calif. L. Rev. 371, 383 (1939). 225. 174 U.S. 411 (1885).

226. Act of Feb. 28, 1871, ch. 100, § 64, 16 Stat. 458.

227. 114 U.S. at 413-15. The Court noted that it had previously upheld a similar congressional authorization in United States v. Norris, 25 U.S. (10 Wheat.) 246 (1825). 228. A remission of a fine may not go so far as to "blot out" the offense and make the offender as innocent as if he had never committed the offense. See p. 118 supra. The offender is relieved of his duty to pay the fine, but presumably the original records of the offense remain. However, since even a full pardon falls short of making the offender "a new man", (see p. 118 supra), there would appear to be little practical difference between a pardon and the remission of a fine. 229. W. Humbert, supra note 168, at 44-45.

231. For example, the President might oppose congressional amnesty if he himself had deliberated and decided against such an amnesty. In this case, he might veto a congressional amnesty, but Congress might then override the President's veto. Of course, once a congressional amnesty became law, the President could not limit its scope.

232. W. Humbert, supra note 168, at 45.

C. Amnesties Granted by American Presidents

The executive amnesty power was exercised on several occasions during the early decades of this nation's history.233 Between 1807 and 1830, five amnesties were granted to deserters from the armed services.234 The condition most commonly attached to these amnesties was that a deserter turn himself in to a Commanding Officer within a certain time and fulfill the remainder of his term of duty.235 Although two or three of these amnesties were proclaimed in order to raise troop levels for oncoming conflicts, it appears that at least two of the amnesties for deserters had forgiveness as their only motive.236

During the Civil War and Reconstruction extensive use was made of the President's amnesty power. On March 10, 1863, President Lincoln proclaimed amnesty and full restoration to rights and duties for all soldiers absent without leave from the Union forces, provided they returned to their respective units within 21 days.237 Later that year the President granted the first broad amnesty benefitting Confederate rebels, his motive being to weaken the morale of the South and cause its soldiers to desert.238 This amnesty239 of December 8, 1863, extended to all persons who participated either directly or indirectly in the Confederate cause a restoration of all civil and property rights,240 on the con

233. President Washington first exercised the executive amnesty power in 1795 following the Whiskey Rebellion, a disorderly demonstration by Western Pennsylvania residents protesting the federal excise tax on whiskey. The President proclaimed an amnesty for all parties involved for their offense of treason on the condition that they give assurances of submission to the laws of the United States. 1 Messages, supra note 175, at 181. Five years later President Adams granted a similar amnesty to participants in a small Massachusetts insurrection. 1 Messages 303.

In 1807, President Jefferson proclaimed a full pardon for all deserters from the U.S. Army who had sought shelter outside the jurisdiction of the courts-martial. 1 Messages 425. The condition attached to this amnesty was that each deserter simply turn himself in to any Commanding Officer within four months and resume his military duties. Amnesties identical to Jefferson's were proclaimed by President Madison on Feb. 7, 1812, and Oct. 8, 1812, ostensibly to raise the troop levels to fight the British. 1 Messages 512, 514. A fourth amnesty of the same nature was proclaimed by President Madison on June 17, 1814. 1 Messages 543. Finally, an executive order of June 12, 1830, issued by John H. Eaton, President Jackson's Secretary of War, pardoned all deserters previously indicted or convicted and allowed them to return to duty, and discharged and pardoned all deserters at large provided that they would never again serve in the army. 2 Messages

449.

234. See id.

235. Id.

236. The amnesties of June 17, 1814, and June 12, 1830, would seem to have had no tactical significance, since at the time they were granted the nation was not preparing for war. See id.

237. 6 Messages 163.

238. J. Dorris, Pardon and Amnesty Under Lincoln and Johnson 28 (1953) [hereinafter cited as Dorris].

239. Proc. of Dec. 8, 1963, 13 Stat. 737.

240. Of course, property rights as to slaves, no longer recognized by the Union, were not restored.

dition that they take an oath to support the Constitution and the Union. Since the Union forces were definitely on the upswing militarily at that time,241 tens of thousands of demoralized Confederates were easily enticed into taking the oath of allegiance to the Union.242 Lincoln's amnesties thus extended not only to Union deserters but to citizens who had committed the treasonous act of enlisting in the ranks of the enemy.

Two proclamations of amnesty during the Civil War period are of particular interest as precedents for a possible amnesty in the near future. On March 11, 1865, when the Civil War was nearly over, President Lincoln granted amnesty to all Union deserters who would return to their posts within 60 days and serve the remainder of their military tours of duty plus a period of time equal to their unauthorized absence.243 With the war almost ended, and with a generous period of time244 in which to return to duty, it appears that this amnesty was proclaimed less for tactical reasons than for reasons of forgiveness and to avoid future divisiveness and dislocation of American citizens. Likewise, President Johnson's amnesty of May 29, 1865,245 which was announced after the war had formally ended, evinced a desire to forgive the offense of treason and to bring Southerners back into a free and productive role within the Union. In his Proclamations of September 7, 1867 and July 4, 1868,246 President Johnson extended amnesty to classes of persons excluded from previous amnesties.247 On December 25, 1868, he proclaimed amnesty “unconditionally and without reservation, to all and to every person who directly or indirectly, participated in the late insurrection or rebellion, and a full pardon and amnesty for the offense of treason against the United States."248 Among the 37 Confederate leaders finally pardoned by this extension of amnesty were Jefferson Davis and Generals Lee, Rooney, Custis, and Fitzhugh Lee.249 Draft evaders and deserters benefitted from no amnesties during or after World War I.250 However, thirty persons convicted under the 241. Lincoln, Third Annual Message to Congress, Dec. 8, 1863, 6 Messages 188. 242. Dorris 62-63.

243. 6 Messages 278.

244. 21 days were allowed for return to duty in the Proc. of Mar. 10, 1963, supra

note 237.

245. Proc. of May 29, 1865, 13 Stat. 758.

246. 15 Stat. 699 (1867) and 15 Stat. 792 (1868).

247. See Pres. Lincoln's Proc. of Dec. 8, 1863, supra note 239; Pres. Johnson's Proc. of May 29, 1865, supra note 245.

248. Proc. of Dec. 25, 1868, 15 Stat. 711.

249. Dorris 311.

250. After both World Wars, amnesty was extended to deserters with respect to the restoration of rights of citizenship. Proc. of Mar. 5, 1924, 43 Stat. Pt. II 1940; Proc. of Dec. 31, 1952, 17 Fed. Reg. 11833. However, these partial amnesties applied only to persons who had deserted after hostilities had ended and before Congress had declared the wars to be over. Since citizenship may be forfeited by desertion only during wartime,