Amnesty and Pardon

Early history. The roots of pardon and amnesty are found in ancient law. References to institutions somewhat resembling the modem pardon appear in ancient Babylonian and Hebrew law. The first amnesty is generally attributed to Thrasybulus in ancient Greece (403 B.C.E.); but fifteen centuries earlier the Babylonian kings, on accession to the throne, would declare a misharum, involving a general discharge from legal bonds of both a civil and a penal character. (An analogy may be found in the biblical "jubilee laws.") The Romans, on the other hand, developed a number of forms of clemency, and these influenced subsequent developments in European law.

In medieval Europe the power to grant pardon was held by various bodies, including the Roman Catholic Church and certain local rulers, but by the sixteenth century it usually was concentrated in the hands of the monarch. In post-Reformation England, the royal prerogative of "mercy" was used for three main purposes: (1) as a precursor to the as-yet-unrecognized defenses of self-defense, insanity, and minority; (2) to develop new methods of dealing with offenders unrecognized by legislation, such as transportation or military conscription; and (3) for the removal of disqualifications attaching to criminal convictions.

Legislative amnesties were frequent in certain civil law countries, such as France, where they were used as an instrument of pacification after periods of civil strife (Foviaux). In England, however, this institution did not take root. The last "Acts of Grace" took place after the Jacobite risings of 1715 and 1745.

The eighteenth century: pardons and the classical school. During the eighteenth century the sovereign's power to grant pardons in individual cases came under attack, notably by Cesare Beccaria in his famous essay On Crimes and Punishments. Permitting the sovereign to interfere with the implementation of the laws was perceived as a threat to the concept of the separation of powers in derogation of the autonomy of both legislature and judiciary—although Montesquieu, with whom the concept of the separation of powers is associated, did not oppose the pardoning power. Such interventions were also seen as detrimental to the deterrent powers of the law, which were predicated on the inexorability of its implementation. Finally, the rampant use of pardons (particularly with respect to accomplices to crimes who informed against the principal perpetrators) was seen as a source not only of uncertainties but also of corruption and abuse.

These criticisms bore fruit after the outbreak of the French Revolution with the adoption of the Penal Code of 1791, which abolished all powers of pardon in relation to offenses triable by jury. However, the critics' victory was short-lived, for the pardoning power was revived when Napoleon Bonaparte became consul for life in 1802. Echoes of the eighteenth-century controversy, however, still reverberate today.

The nineteenth century: amnesty and the American Civil War. Article II, Section 2 of the U.S. Constitution bestows upon the president the power to "grant Reprieves and Pardons for offences against the United States, except in Cases of Impeachment." The first important questions arose in this regard when, in the wake of the Civil War, President Andrew Johnson purported to grant amnesty or a general pardon in favor of southern loyalists. The president was bitterly attacked, it being argued that the power he asserted was in the exclusive purview of Congress, and very different from that specified in the Constitution (L.C.K.). President Johnson seems, however, to have been vindicated in retrospect (at least as regards his constitutional position) by later measures of this type—notably, President Jimmy Carter's general pardon of the Vietnam draft evaders—which have gone unchallenged.