Justice or tranquility? The dilemma of amnesty in the wake of conflict

“ LAWS are the conditions, under which men, naturally independent, united themselves in society. Weary of living in a continual state of war, and of enjoying a liberty which became of little value, from the uncertainty of its duration, they sacrificed one part of it, to enjoy the rest in peace and security. The sum of all these portions of the liberty of each individual constituted the sovereignty of a nation and was deposited in the hands of the sovereign, as the lawful administrator. ”

“ The multiplication of mankind, though slow, being too great for the means, which the earth, in its natural state, offered to satisfy necessities, which every day became more numerous, obliged men to separate again, and form new societies. These naturally opposed the first, and a state of war was transferred from individuals to nations.
Thus it was necessity that forced men to give up a part of their liberty; it is certain, then, that every individual would chuse to put into the public stock the smallest portion possible; as much only as was sufficient to engage others to defend it. ”

“ It has been my constant aim and desire to cultivate peace and commerce with all nations. Tranquility at home and peaceful relations abroad constitute the true permanent policy of our country. War, the scourge of nations, sometimes becomes inevitable, but is always to be avoided when it can be done consistently with the rights and honor of a nation. ”

“ But I think the American people expect more from us than cries of indignation and attack. The times are too grave, the challenge too urgent, and the stakes too high – to permit the customary passions of political debate. We are not here to curse the darkness, but to light the candle that can guide us through that darkness to a safe and sane future. As Winston Churchill said on taking office some twenty years ago: if we open a quarrel between the present and the past, we shall be in danger of losing the future.
Today our concern must be with the future. For the world is changing. ”

“ If we are to leave off fighting, we may surely leave off haggling. A statute of limitations or, if you will, an amnesty, is surely proper when so sublime a peace seals so sublime a struggle. And if there be anything in which an old diplomatist may advise you, I would most strongly say this: that there should be no new disturbance of whatever amicable or domestic ties have been formed during this disturbed time. I will admit I am sufficiently old-fashioned to think any interference with the interior life of the family a precedent of no little peril. ”

“ The next step which I have taken to restore the constitutional relations of the States has been an invitation to them to participate in the high office of amending the Constitution. Every patriot must wish for a general amnesty at the earliest epoch consistent with public safety. For this great end there is need of a concurrence of all opinions and the spirit of mutual conciliation. All parties in the late terrible conflict must work together in harmony. ”

“ With union grounded on falsehood, and ordering us to speak and act lies, we will not have anything to do. Peace? A brutal lethargy is peaceable, the noisome grave is peaceable. We hope for a living peace, not a dead one! ”

“ Afterwards, a writer in the "Christian Commonwealth," lamenting war in the name of Labour, but in the language of my own romantic middle-class, said that all the nations must share the responsibility for this great calamity of war. Now exactly as long as we go on talking like that we shall have war after war, and calamity after calamity, until the crack of doom. It simply amounts to a promise of pardon to any person who will start a quarrel. It is an amnesty for assassins. The moment any man assaults any other man he makes all the other men as bad as himself. ”

“ I have spoken to the questions that must weigh on our minds and our hearts as we choose to wage war. But let me turn now to our effort to avoid such tragic choices, and speak of three ways that we can build a just and lasting peace.
First, in dealing with those nations that break rules and laws, I believe that we must develop alternatives to violence that are tough enough to change behavior -- for if we want a lasting peace, then the words of the international community must mean something. Those regimes that break the rules must be held accountable. Sanctions must exact a real price. ”

“ It is necessary to reduce expenditures, increase savings and liquidate debts. It is in this direction that there lies the greatest hope of domestic tranquility and international peace. Our own country ought to finish the leading example in this effort. Our past adherence to this policy, our constant refusal to maintain a military establishment that could be thought to menace the security of others, our honorable dealings with other nations whether great or small, has left us in the almost constant enjoyment of peace. ”

“ Since a treaty of peace is considered a final settlement of the war, one of the effects of every peace treaty is the so-called amnesty—that is, an immunity for all wrongful acts done by the belligerents themselves, the members of their forces, and their subjects during the war, and due to political motives. ”

“ Are the insurgents to meet victory or defeat? Has not history established the melancholy truth, that constant wars lead to military dictatorship, and despotism, and are inconsistent with the free spirit of republican governments? If the tranquility of the Union is to be disturbed every eleventh year by a civil war, what repose can there be for the citizens in their ordinary pursuits? Will they not soon become tired of a republican government, which invites to such eternal contests, ending in blood, and murder, and rapine? ”

“ The code that is greatly modified by time and place, will vary according to the cause. The amnesty is an artifice that enables us to make exceptions, to tamper with weights and measures, to deal unequal justice to friends and enemies. ”

“ But it is important to remember here again that the amnesty grants immunity only for wrongful acts done by the subjects of one belligerent against the other. Such wrongful acts as have been committed by the subjects of a belligerent against their own Government are not covered by the amnesty. Therefore treason, desertion, and the like committed during the war by his own subjects may be punished by a belligerent after the conclusion of peace, unless the contrary has been expressly stipulated in the treaty of peace. ”

“ CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. ”

“ The punishment of death is pernicious to society, from the example of barbarity it affords. If the passions, or the necessity of war, have taught men to shed the blood of their fellow creatures, the laws, which are intended to moderate the ferocity of mankind, should not increase it by examples of barbarity, the more horrible, as this punishment is usually attended with formal pageantry. Is it not absurd, that the laws, which detest and punish homicide, should, in order to prevent murder, publicly commit murder themselves? ”

“ The certainty of a small punishment will make a stronger impression, than the fear of one more severe, if attended with the hopes of escaping; for it is the nature of mankind to be terrified at the approach of the smallest inevitable evil, whilst hope, the best gift of heaven, hath the power of dispelling the apprehension of a greater; especially if supported by examples of impunity, which weakness or avarice too frequently afford. If punishments be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. ”

“ Their power should follow every subject, as the shadow follows the body. Sanctuaries and impunity differ only in degree, and as the effect of punishments depends more on their certainty, than their greatness, men are more strongly invited to crimes by sanctuaries, than they are deterred by punishment. ”

“ I do not know of any exception to this general axiom, that Every member of the society should know when he is criminal, and when innocent. If censors, and, in general, arbitrary magistrates, be necessary in any government, it proceeds from some fault in the constitution. The uncertainty of crimes hath sacrificed more victims to secret tyranny, than have ever suffered by public and solemn cruelty. What are, in general, the proper punishments for crimes? Is the punishment of death really useful, or necessary for the safety or good order of society? ”

“ The violent shock between a mass of errors, useful to the few and powerful, and the truths so important to the many and the weak, with the fermentation of passions excited on that occasion, were productive of infinite evils to unhappy mortals. In the study of history, whose principal periods, after certain intervals, much resemble each other, we frequently find, in the necessary passage from the obscurity of ignorance to the light of philosophy, and from tyranny to liberty, its natural consequence, one generation sacrificed to the happiness of the next. ”

“ Let liberty be attended with knowledge. As knowledge extends, the disadvantages which attend it diminish, and the advantages increase. A daring impostor, who is always a man of some genius, is adored by the ignorant populace, and despised by men of understanding. Knowledge facilitates the comparison of objects, by shewing them in different points of view. When the clouds of ignorance are dispelled by the radiance of knowledge, authority trembles, but the force of the laws remains immoveable. ”

“ The severity of a punishment should be just sufficient to excite compassion in the spectators, as it is intended more for them than for the criminal.
A punishment, to be just, should have only that degree of severity which is sufficient to deter others. Now there is no man, who upon the least reflection, would put in competition the total and perpetual loss of his liberty, with the greatest advantages he could possibly obtain in consequence of a crime. Perpetual slavery, then, has in it all that is necessary to deter the most hardened and determined, as much as the punishment of death. ”

“ The power of habit is universal over every sensible being. As it is by that we learn to speak, to walk, and to satisfy our necessities, so the ideas of morality are stamped on our minds by repeated impressions. The death of a criminal is a terrible but momentary spectacle, and therefore a less efficacious method of deterring others, than the continued example of a man deprived of his liberty, condemned, as a beast of burthen, to repair, by his labour, the injury he has done to society. ”

“ IT is not only the common interest of mankind, that crimes should not be committed, but that crimes of every kind should be less frequent, in proportion to the evil they produce to society. Therefore, the means made use of by the legislature to prevent crimes, should be more powerful, in proportion as they are destructive of the public safety and happiness, and as the inducements to commit them are stronger. Therefore there ought to be a fixed proportion between crimes and punishments.
It is impossible to prevent entirely all the disorders which the passions of mankind cause in society. ”

“ In the face of a real and present danger, freedom of speech may be somewhat restricted even in America. Can we then say that in the throes of total war and in the presence of impending disaster those officials who enforced these savage laws in a last desperate effort to stave off defeat were guilty of crimes against humanity? ”

“ If the war succeeds, no one questions the validity of the annexation. If it fails, the attempt to annex becomes abortive. In view of our clear duty to move with caution in the recently charted field of international affairs, we conclude that the domestic laws and judgments in Germany which limited free speech in the emergency of war cannot be condemned as crimes against humanity merely by invoking the doctrine of aggressive war. ”

“ Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment. To shew mankind, that crimes are sometimes pardoned, and that punishment is not the necessary consequence, is to nourish the flattering hope of impunity, and is the cause of their considering every punishment inflicted as an act of injustice and oppression. ”

“ WE have proved, then, that crimes are to be estimated by the injury done to society. This is one of those palpable truths, which, though evident to the meanest capacity, yet, by a combination of circumstances, are only known to a few thinking men in every nation, and in every age. But opinions, worthy only of the despotism of Asia, and passions, armed with power and authority, have, generally by insensible, and sometimes by violent impressions on the timid credulity of men, effaced those simple ideas, which perhaps constituted the first philosophy of infant society. ”

“ THE proofs of the crime being obtained, and the certainty of it determined, it is necessary to allow the criminal time and means for his justification; but a time so short, as not to diminish that promptitude of punishment, which, as we have shewn, is one of the most powerful means of preventing crimes. A mistaken humanity may object to the shortness of the time, but the force of the objection will vanish, if we consider that the danger of the innocent increases with the defects of the legislation. ”

“ Whether it be useful that nations should mutually deliver up their criminals? Although the certainty of there being no part of the earth where crimes are not punished, may be a means of preventing them, I shall not pretend to determine this question, until laws more conformable to the necessities and rights of humanity, and until milder punishments, and the abolition of the arbitrary power of opinion, shall afford security to virtue and innocence when oppressed ”

“ If mathematical calculation could be applied to the obscure and infinite combinations of human actions, there might be a corresponding scale of punishments, descending from the greatest to the least; but it will be sufficient that the wise legislator mark the principal divisions, without disturbing the order, lest to crimes of the first degree, be assigned punishments of the last. If there were an exact and universal scale of crimes and punishments, we should there have a common measure of the degree of liberty and slavery, humanity and cruelty of different nations. ”