Amnesty (Gr. forgetting, oblivion), an act of oblivion; a general pardon of the offences of subjects against the government, or the proclamation of such pardon. Bouvier, in his Law Dictionary, distinguishes between amnesty and pardon. Amnesty, he says, is an act of the sovereign power, the object of which is to efface and cause to be forgotten a crime or misdemeanor; while pardon is an act of the same authority which exempts the individual on whom it is bestowed from the punishment which the law inflicts for the crime he has committed. Amnesty is the absolution and forgetfulness of the offence; but pardon is pity and forgiveness. Pardon is given to one who is certainly guilty; amnesty to those who may have been guilty. The two things differ further, he says, in their effects and application; and as to the latter distinction, he observes, by way of illustration, that pardon is always given to individuals and after judgment, while amnesty may be granted either before or after judgment, and it is in general given to whole classes of criminals or supposed criminals for the purpose of restoring tranquillity in the state. - But it does not appear, after all, that there is any substantial difference between pardon and amnesty.
The act of grace is the same, whether it be expressed in the pardon of an individual or in the amnesty of a class, and though the one be granted after conviction and the other before it. The distinctions which this author suggests seem to relate to the different occasions to which the two acts refer, and to the merely incidental results in either case, rather than to anything different in the essential nature of the acts. - During the late civil war, and since it ended, the presidents of the United States have issued several proclamations of amnesty to those who participated in it on the rebel side. President Lincoln issued the first of these proclamations on Dec. 8, 1803. President Johnson issued similar proclamations on May 29, 1865, Sept. 7, 1867, July 4, 1868, and Dec. 28, 1868. Some of these proclamations were limited and conditioned, but the later ones were more liberal, and the last named was very broad and unqualified. With especial reference to this last paper, the question was mooted whether the president, in mere virtue of his office, and without the concurrence of congress, had constitutional authority to order a general amnesty; and in a report of the judiciary committee of the senate made in February, 1869, the authority was emphatically denied.
The position taken in this report was rested on two grounds: first, that from the time at least when England had a constitution and settled jurisprudence, the crown did not assume to have a power to grant general pardon or amnesty by its mere proclamation, and without the concurrence of parliament, but that such power was regularly and properly exercised only by statute; second, that for hundreds of years there had been a clear distinction in the English law between pardon and amnesty, and that because the constitution used only the former word it must be understood to withhold from the president the power of granting general amnesty. In reference to the power of pardon our constitution is very clear and precise: "The president shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment." The question is, under this constitutional provision, what does its word pardon mean ? Does it include such a power of offering general amnesty as these proclamations have assumed to give? It is true that, in very many of the instances, though by no means in all, in which general pardons have been granted in England, they have issued in the form of acts of parliament.
But even in these the tenor of the statutes, and the proceedings attending their enactment, concede that the act of grace proceeds from the sovereign alone, and not from parliament. Thus in the acts of 25 Charles II., ch. 5 (1678), after the restoration; of 2 William and Mary, ch. 10 (1690), and of 6 and 7 William III., ch. 20 (1694), after the revolution of 1688; of 3 George I., ch. 19 (1717). relating to the insurrection in Scotland in favor of the pretender; and of 20 George II., ch. 52 (1747), after the second rebellion in Scotland, the title of each runs: "An act for the king's (or sovereign's) most gracious, general, and free pardon." The prerogative of the crown in respect to pardon has also always been recognized in the peculiar character of the bill, even when the pardon goes by act of parliament; for, unlike other bills, it is regularly signed by the sovereign before it is introduced into the houses, and it is read but once in either of them; and when it receives the assent of the houses, this is not signified in the usual form of concurrence, but " the prelates, lords, and commons, in the name of all the sovereign's subjects, most humbly thank his majesty," etc.
With regard to the fact that pardons so often issued by statute, it should be remembered that there were usually very substantial reasons for the participation, in a certain sense, by parliament in the sovereign's act of grace, in the fact that a parliamentary act could relieve forfeitures and remove certain other disabilities attending attainders, which a mere pardon could not do; and provisions to this effect were generally introduced into these acts. The fact, therefore, that in any instance a general pardon or amnesty appears to have been granted in the form of an act of parliament, does not of itself imply any denial of the crown's sole prerogative power as to the pardon. More than this, there will be found repeated instances in English history where the sovereign has granted amnesties by general proclamation independently of parliament, and the competency and validity of such acts have never been disputed. In short, so far as the law and practice existed in England before and down to the time of the foundation of our government, it seems to be beyond question that the power of pardon rested finally in the sovereign, and that his grants of general amnesty were conceived to be included in the general power.