Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
Publisher/Edition
New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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AMNESTY

I.55.1

AMNESTY. Amnesty is the reproduction of a Greek word, , the literal meaning of which is forgetfulness. This is also the true meaning of the English word. To grant an amnesty is not to forgive or pardon; it is to forget. Amnesty preserves a character of generality, and of absolute remission which no other form of clemency implies. Thus the right of amnesty is the broadest privilege of victory and power. Amnesty has frequently to deal more with the treachery of fortune than with the faults of men. Thrasybulus, after having driven out the thirty tyrants of Athens, had a law passed by the people, called the law of forgetfulness, , which forbade the troubling of any citizen on account of past acts. This example sustains our definition and marks clearly the sense and bearing of the word. After a struggle or conflict and especially after civil convulsion, when victory has pronounced in favor of a person or a party, when the vanquished have laid down their arms and hatred has left the battle-field to take refuge in the breasts of men, clemency is sometimes called on to finish the work begun by proscription, and the scaffold; and that which was obtained neither from the rigor of persecution nor the terror of torture is obtained by an amnesty which appeases minds, cicatrizes wounds, and lulls vengeance to sleep.

I.55.2

—Amnesty, emanating always from the will of man or of a political body, has no fixed rules. It varies according to the character or interest of the grantor, or the circumstances inspiring it. It is general or particular, absolute or conditional. It is general when it comprises a whole class of offenses, and makes no exception of persons. It is particular when it excludes a whole class of individuals judged unworthy of it. It is conditional when it subjects the people it has in view to the performance of certain conditions. It is absolute when it imposes no conditions. We will cite a few cases of the different kinds of amnesty which we have just named. One of the most celebrated amnesties is that mentioned in the treaty of Passau. Not only was it general and absolute, but it seems that after having amnestied the combatants it was desired to amnesty the war itself. It called the brilliant campaigns of Maurice de Saxe, simply "military exercises." The thirty years war brought to a close by the treaty of Münster was also followed by an amnesty called full and entire, but the execution of which met with many difficulties.

I.55.3

—When Charles II. re-ascended the throne, he declared a general amnesty without restriction, but parliament interfered, and the majority, more royalist than the king, excepted the judges who had condemned Charles I. This regretable exception, as is known, was made a pretext for fearful reprisals. But there is a still bloodier page in the history of amnesty. Sincere in appearance, but serving in reality to cover the most abominable designs, the amnesty granted to the Huguenots, in 1570, was an odious snare and paved the way for the massacre of St. Bartholomew.

I.55.4

—A few facts more: In 1413 a truce was made between the Armagnacs and the Bourgignons under the name of letters of abolition. It was an amnesty intended to efface the whole of a bloody past. A century later, at Bordeaux, an amnesty followed the repression of seditious movements which had taken place in the city. In 1556, 1560, and 1572, in consequence of various episodes in religious wars, amnesties were accorded, guaranteeing to the conquered heretics life and possession of their property.

I.55.5

—In 1749 an insurrection broke out at Lyons. The question was about a regulation of the council of wardens. The acclamation of the working class was answered by musket shots. The whole population rose up, sustained and excited, even by the women. The armed force was driven from the city. The conquerors executed justice on the unlucky regiment, the original cause of the trouble. The case was a grave one; the precedent perilous. Yet clemency prevailed, and to proportion it to the importance of the occasion the form of a general amnesty was given it.

I.55.6

—It is not by facts alone that the distinctive characteristics of an amnesty are revealed. They are indicated and commented upon in the writings of the lawyers of the time. "The king," says Rousseaud de Lacombe, "accords sometimes letters of abolition to a city, a province, a community, for deeds or crimes committed against the interests, the order, or the will of the king, or against the royal authority; this pardon is called an amnesty," and he adds: "It is necessary to follow blindly whatever is ordained by the letters and decisions containing the amnesty or abolition."

I.55.7

—Almost all the governments which have succeeded each other in France since the revolution of 1789 have had recourse to amnesty with a view to peace and concord; but the crises were so near each other, hatred so pertinacious, passions so hot, that the conqueror almost always sacrificed some victim to his safety or his rancor. There are exceptions to almost all amnesties. In 1814 the restoration recoiled even before this measure. It was replaced by article 11 of the constitutional charter, declaring that no man could be prosecuted for his political opinions. Napoleon was bolder on his political opinions. Napoleon was bolder on his return from the island of Elba. After declaring all who had assisted in overturning the imperial throne state criminals, he granted them a full and complete amnesty, from which were excepted only 13 of the most guilty. This example of partial and restrictive amnesty was imitated at the second restoration. Published only on Jan. 12, 1816, this new amnesty did not include a certain number of prominent persons, among whom it will suffice to mention Ney, Labédoyère and Lavalette. The men who had voted the death of Louis XVI. were proscribed, and the power was reserved of banishing from the kingdom in the space of two months, certain suspected persons, among the number Soult, Bassano, Vandamne, Carnot, Hulin, Merlin and others. This was mingling many an irritating souvenir with a measure the real meaning of which is forgetfulness (amnesty).

I.55.8

—To whom belongs the right of granting amnesty; and how may different political constitutions, modify the exercise of that right? These questions we shall examine now.

I.55.9

—It is of the essence of this right to belong to the sovereign. Simple as this rule is when the sovereignty is one and absolute, its interpretation may vary greatly if the sovereignty is limited or divided. Under the ancient monarchy of France, for instance, when the king desired to grant an amnesty, he sent the letters of abolition to be registered, and we do not think that any parliament would have allowed itself to remonstrate on this subject. Even the quotation from Rousseaud de Lacombe made above, shows how free this law was from restriction.

I.55.10

—It has been the same wherever the same form of government has existed.

I.55.11

—In republics this right has passed to the sovereign assembly which retains and defends it against the claims of the executive, which sees with good reason in this power the index and the means of preponderant powers. France has witnessed the spectacle of this struggle on two memorable occasions which we need to recall because the distinction between pardon and amnesty was clearly established on both occasions. According to article 16 of the senatus-consultum of the 15th thermidor, year X., the first consul had only the right to pardon. The power of granting amnesty had not been given him. Napoleon wished that this anomaly should disappear.

I.55.12

—Article 57 of the law of April 22, 1815, an addition to the constitution of the empire, was thus worded: The emperor has the right of pardon even in correctional matters, and of granting amnesties. In 1848, at the time of discussing the articles of the constitution, the project drawn up by the commission was worded thus: Amnesty can be accorded only by a law. M. Aylies proposed an amendment, that the words, "On the propositions of the president of the republic" be added. This amendment was opposed in the name of the commission by M. Dupin. He maintained that the power left the president of anticipating the assembly in proposing an amnesty was enough of a prerogative. The constitutional assembly rejected the amendment. The wording of the commission was retained. Article I., of the senatus-consultum of Dec. 25, 1852, is thus worded: The emperor has the right to pardon and grant amnesties. The charter of 1814 was silent on the question of amnesty, and we have seen that article 11 had in view the effacement of the political past of all citizens. Under the régime established in 1871, the right of amnesty in France, is reserved to the national assembly. Certain political casuists have asked, not without some puerility, what are the signs by which the claims of a new power to the right of amnesty are to be recognized, and who is to be the judge if the terms of the act are not sufficiently clear? This double question will remain long unanswered if it is to be examined aside from accomplished facts.

A. HÉBRARD.

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