- Historic Sites
October 1973 | Volume 24, Issue 6
B.C., American practice not unexpectedly derives from English usage. Beginning with Ethelbert, the sixth-century king of Kent, and continuing through succeeding monarchies, “the king’s mercy”—what Rlackstone called “the most amiable prerogative” of the British Crown—gradually became a settled part of English common law until it was recognized by parliamentary statute in the sixteenth century. It was carried to the New World in the commissions of the colonial governors, who were empowered to offer pardons on behalf of the king.Although the first recorded amnesty was proclaimed at Athens in 403
When the American Revolution forced the colonists to replace their English charters as the base of government, all thirteen states made some provision for pardon in their constitutions, five of them vesting it fully in the executive. Congress did not include the power in the Articles of Confederation, but in 1787 the delegates to the Constitutional Convention—with only slight reservation—restored the pardon as an executive right. It has remained with the President ever since, although it is possible for Congress, under the, provisions of the “necessary and proper” clause, also to grant amnesty.
Article II, Section 2 of the Constitution confers on the President authority “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It is a free and full power, for the President may exercise it without interference from Congress or the courts. In fact, he may grant pardons—as the distinguished constitutional historian E. S. Corwin points out—“for good reasons, bad reasons, or no reason at all.…”
From George Washington onward, Presidents have assumed that the pardoning power carried with it the right to proclaim amnesties. The distinction in the law is a fine one and, simply put, means that a pardon is usually an individual, private act granted after a conviction has been secured, while an amnesty is taken to be a class action designed to arrest the movement of the law before trial and conviction have taken place.
With the granting of an amnesty society overlooks the offense and takes no legal steps against the offenders. All indictments are. cancelled, there are no trials, and convictions already secured are expunged. In short, society chooses to absolve the offenders from all future consequences of their acts and restores them to full citizenship as if the offense had never taken place. It does so—as the Supreme Court noted in 1915—because “forgiveness is deemed more expedient for the public welfare than prosecution and punishment” in a given instance.
An amnesty, then, is a form of general pardon. Since 1795, when Washington amnestied participants in the Whiskey Rebellion, fifteen Presidents have availed themselves of the power on thirty-seven separate occasions. The following is a representative sample of instances throughout our history when the opportunity for pardon and amnesty arose.
Discontent and violence erupted in the Monongahela Valley of western Pennsylvania in the spring and summer of 1794 as farmers from four counties reacted to attempts of the federal government to enforce a tax on whiskey. For many of the farmers the only way to get grain to market (Spain had closed the Mississippi to American trade) was to convert it to whiskey. Moreover, in an area where hard money was in short supply, whiskey had become a medium of exchange. Protesting the excessive duty on liquor and the violation of their civil rights in what they took to be highhanded efforts to collect the tax, the farmers drove the tax agents from the counties, stopped the mails, and closed the federal courts. At one point several thousand armed men threatened to sack the town of Pittsburgh, and there was talk that an army would march on Philadelphia.
Efforts to negotiate with the rebels broke down, and Washington, calling the rebels’ action treason, raised an army of thirteen thousand men from the militias of several states. After some weeks of prowling through Pennsylvania the army was withdrawn and the insurrection declared at an end. Fewer than a hundred suspects were rounded up—there had been no fighting—and perhaps twenty were brought to trial. Two of these were found guilty, but on examination one was discovered to be feebleminded and the other insane. In separate and private action Washington subsequently pardoned both of the men.
In the meantime, on July 10, 1795, the President pardoned all those who had participated in the uprising and had since signed an oath of allegiance to the laws of the United States. Exempted from the pardon were any persons currently under indictment for continued violation of the laws or for failure to sign the required oath of renewed allegiance.
As he explained to Congress later, Washington was convinced that the “misled have abandoned their errors, and pay the respect to our Constitution and laws which is due. … though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good … to mingle in the operations of Covernment every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”