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The original documents are located in Box 5, folder "Final Report - Draft, 8/29/75 (12)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
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Digitized from Box 5 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
VIII
B
APPENDIX
THE HISTORICAL PERSPECTIVE OF CLEMENCY
I. Constitutional Authority to Pardon
II. Clemency During the Nation's Formative Years
III. Civil War
IV. Twentieth Century Amnesties
V. The Australian Clemency Program
is
FORD
APPENDIX
THE HISTORICAL PERSPECTIVE OF CLEMENCY
I. Constitutional Authority to Pardon
A. English Heritage
B. Colonial and State Government Practice Prior to 1789
1. The Bacon Rebellion
2. The War of the Regulation
C. The President's Grant of Authority Under the Federal Constitution
CONSTITUTIONAL AUTHORITY TO PARDON
English Heritage
Article II, Section 2 of the Constitution of the United States reads,
in part, that the President "shall have the Power to grant Reprieves and
Pardons for Offences against the United States, except in cases of
impeachment. "1/ By the time the Founding Fathers wrote the Constitution,
they could draw upon their knowledge of English and colonial precedents
in order to shape our own national constitution. The First Supreme
Court opinion which considered the President's pardoning power expressly
recognized the important link provided by our English heritage:
As this power had been exercised from time immemorial by the
executive of that nationa whose language is our language, and
to whose judicial institutions our bear a close resemblance, we
adopt their principles respecting the operation and effect of
a pardon, and look into their books for the rules prescribing
the manner in which it is to be used by the person who would
avail himself of it.
To properly place and interpret the President's pardoning power, it is
therefore appropriate to trace the development of the pardoning power in
England.
Clemency during the Anglo-Saxon period, up until the Normal Conquest
of 1066 was extremely vague. The king possessed relatively little power
during this period, for the real authority lay with the clan chiefs, in
whom the authority to pardon was vested. The privilege of pardon was a
question of power, not yet a problem of law. Although the king technically
had the authority to pardon, the existence of the right of private vengence
and retaliation, and the opposition of powerful nobles combined to confine
the exercise of the clemency power to those offenses which were committed
by members of the king's household, or to offenses which posed a personal
threat to the security and authority of the king.4/
-2-
The Norman Conquest brought with it the belief that the pardon power
was an exclusive perogative of the sovereign. 5/ However strong this
belief may have been in Norman political thought, it rarely was accepted
by the groups contending for power with the king. Other contenders for
the pardoning power includes the great earls 6/, the church (through the
use of "benefit of clergy" 7/, and finally, parliament.
The fourteenth century witnessed a long series of parliamentary attempts
to curtail the royal power. From time to time Parliament enacted laws
restricting the king's power to pardon. In 1389, Parliament enacted a law 8/
which provided that no pardon for treason, murder, or rape could be allowed
unless the offense were particularly specified in the pardon decree. In
the case of murder, the pardon decree had to state whether the murder was
committed by lying in wait, assault, or with malice. According to
Sir Edward Coke, Parliament enacted such a statute in order to curtail the
king's use of his pardon power when the enumerated felonies were committed.
The king would be less likely to grant a pardon for these kinds of offenses
if he publicly had to disclose it. 9/
During the reign of Henry VIII, the full pardon power shifted back to
the King. In 1535 Parliament enacted a statute which provided the kind with
the exclusive authority to grant a pardon:
"No person or persons, of what estate or degree soever they be
shall have any power or authority to pardon or remit but that the Kings'
highness, his heirs and successors, kings of this realm, shall have
the whole and sole power and authority thereof united and knit to
the Imperial Crown of this realm, as of good right and equity it
appertaineth "10/
-3
Within two-hundred years following this enactment, Parliament enacted
three import restrictive measures on the kings authority to pardon:
The Habeas Corpus Act of 1679 11/, the Bill of Rights 12/, and the Act
of Settlement. 13/
Section eleven of the Habeas Corpus Act of 1679 prohibited arbitrary
imprisonment and made it an offense against the King and his government
"to send any subject of this realm of prisoner into parts beyond the seas. "
Any person committing such an offense could not receive a pardon from the
King. The Bill of Rights Act of 1689 prohibited the granting of dispensations,
by declaring it illegal for the Crown to claim its previously claimed
power of the right to suspend a given law and also the right to disregard
the law in the execution of a particular case. The Act of Settlement,
enacted twelve years later, after the king abused his pardoning power
by shielding his favorites from punishment, probihited the use of pardon in
cases of impeachment, although it did not prohibit its use after the
impeachment had been heard.
In addition to the above limitations on the kings pardoning prerogative,
it is also noted that the King could not pardon anyone who had harmed a
private individual. The King could only pardon offenses against the crown
or the public. 14/ By 1721, Parliament gave itself the authority to
grant pardons. 15/
The Kings authority to grant pardons included the right to make such
pardons conditional. Blackstone pointed out that "The king may extend his
mercy upon what terms he pleases, and may annex to his bounty a condition,
either precedent or subsequent, on performance where of the validity of
the pardon will depend, and this by the common law." 16/
-4-
One particular situation where conditional pardons were utilized by
the king was time of war. During time of war, pardons were generously
granted, subject to the condition that the particular individual agreed
to serve one year during the military. 17/ It was not necessary, however,
that the criminal serve in a foreign land in order to secure a pardon
during war time. Securance of the good offices of a nobleman who was in
who
the service of the King overseas and/would testify as to the criminal's
innocence, was sufficient. With the outbreak of hostilities, the King
needed the support of the lords and bishops, and he was eager to do them
a favor. 18/
Banishment was another form of conditional pardon utilized by the King.
The individual being pardoned had to agree to transport himself to some
foreign country, usually the American colonies, for life, or for a term
of years. 19/ All felons under death could petition the king for a pardon
on condition of their agreeing to transport themselves to the colonies
either for life or for a specified term. The usual procedure was for the
king, if he were willing to grant such a pardon on these terms, to require
the felon to enter into a bond himself, and to provide sureties for his
transportation. 20/ If the offender did not live up to the conditions,
English judges were willing to hold that the condition upon which the original
pardon was given was broken, with the offender remitted to his original
punishment of death. 21/
-5-
cbel/24Aug
Colonial and State Government Practice Prior to 1789
As the American colonies became settled, the English legal concepts
of the seventeenth and eighteenth centuries were transplanted to the
22/
new world.
Included in these concepts was the principle of pardon
and clemency for criminal offenders. An examination of the colonial
charters reveals that the crown generally delegated the pardoning
power in the colonies. However, the ultimate individual (s) who could
grant a pardon pursuant to the King's delegation of authority varied
from colony to colony, and sometimes changed within a given colony as
new charters were written.
In the first Virginia charter no mention occurs regarding the pardon-
ing power, but in the second charter there is granted:
unto_ the said treasurer and company, and their
successors, and to such Governors, Officers, and
Ministers, as shall be by our Council constituted
full and absolute Power and authority to correct,
punish, pardon, govern, and rule all such the
subjects of us,
as shall from time to time
adventure themselves in any Voyage thither
as well in cases capital and criminal, as civil,
both Marine and other. So always as the said
Statutes Ordinances and Proceedings as near as
conveniently may be, be agreeable to the Laws,
Statutes, Government, 237 and Policy of this our
realm of England.
After Virginia became a royal colony the pardon power was exercised
by the royal governor until the advent of the American Revolution.
Likewise, in the royal colony of Maine the governor was given the
authority to pardon, remit, and release all offenses and offenders
-6-
24/
Conn
against any of the laws or ordinances.
octicut's pardoning
authority did not rest solely with the royal governor. The Connecticut
charter provided that the General Assembly, or the major part thereof,
under their common seal could release or pardon offenders if the
governor and six of the assistants were present in such assembly or
court.
William Penn and other Quakers reserved the right of pardon to the
person offended against. The Quakers provided that any person who
should presecute or prefer any indictment or information against
others for any personal injuries or for other criminal matters (treason,
murder, and. felony only excepted) should be "master of his own process,
and have full power to forgive and remit the person or persons offending
against him or herself only, as well before as after judgment and con-
demmation, and pardon and remit the sentence, fine and imprisonment of
25/
the person or persons offending, be it personal or other whatsoever.
The Bacon Rebellion was one of the more significant uprisings in the
colonial period and its aftermath provides an example of the King's use
of the pardoning power. Most historians (but not all) view Bacon as a
patriot who exposed the inept leadership of Virginia Governor Sir
William Berkeley. In 1676 Nathaniel Bacon formed a volunteer group to
attack hostile Indians after Berkeley had failed to organize a militia
26 /
force to pursue the Indians who had massacred a number of settlers.
-7-
Berkeley termed Bacon a rebel and traitor and refused to issue him a
military camission. There was much discontent with the Berkeley
administration; Bacon and his supporters believed the king was not
properly informed of the many problems plaguing Virginia and in September
1676 they revolted against the Governor. Bacon's forces attacked
27'
Berkeley and drove him from Jamestown, the capital.
Bacon died of
natural causes in October and the insurrection faltered with the loss
of his leadership. Berkeley mounted a force which suppressed the
28/
rebellion and he caused 37 of its leaders to be hung.
A royal
commission that had been dispatched from England to look into Berkeley's
conduct arrived with a general pardon for the rebels from Charles II,
29/
but the rebel leaders had already been put to death.
A century passed before another serious uprising occurred. The
War of the Regulation offers further insight into the practice of
clemency in the English colonies. Nearly 2,000 North Carolinians,
known as "Regulators", mounted protests against the laws of Governor
William Tryon. In September 1768 the Governor promised a pardon to all
"Regulators" except the leaders, upon the condition that they surrender
30%
and become law-abiding citizens. Several subsequent Proclamations
were issued by the Governor and in a Proclamation of June 1771 a new
condition was added: to be eligible for pardon, one would have to sub-
scribe to an oath of allegiance. Thirteen of the rebel leaders were
31/
adjudged guilty of treason and seven of these were hung.
One of the
leaders of the North Carolina "Regulators", Herman Husband, surfaced
32/
again a quarter-century later as a participant in the Whiskey Rebellion.
-8-
With the outbreak of the American revolution colonial governments
were replaced by new state governments. Because the executive
department in the state governments had not yet gained the confidence
of the people, due to the lingering memories of royal governors and
their opposition to colonial rights, most state governments provided
that the powers of government would be concentrated in the legisla- -
33
/
ture.
Accordingly, in New Hampshire, Massachusetts,
Pennsylvania, and Virginia, the pardoning power could be exercised
only by the governor with the consent of the executive council.
Vermont,
provided in its
constitution of 1777 that the pardoning authority would be exercised
34/
by the governor and the executive council.
Rhode Island and
Connecticut made no changes in the administration of clemency
35/
and retained their charter form of government for many years.
Georgia authorized the governor only to "reprieve a criminal or
suspend a fine until the meeting of the assembly, who may determine
therein as they shall judge fit. 36/
In the states of New York
-9-
21
The President's Grant of authority under the Federal Constitution:
By the virtue of English and colonial precedent,
The Founding Fathers had ample precedent to establish
the pardoning power for the President. Little debate occurred on
how the power should be utilized. Part of it was directed at the
suggestion that the President would need the consent of the United
States Senate before he could grant a pardon. That suggestion was
38
rejected by a vote of 8-1. - A journal kept by James Madison on
the day to day proceedings of the Federal Convention provides the
following:
Saturday, August 25th, 1787
Mr. Sherman moved to amend the 'power to grant
reprieves and pardons,' so as to read, 'to grant re-
-10-
22
prieves until the ensuring session of the Senate,
and pardons with consent of the Senate. I
On the question, -Connecticut, aye, --1, New
Hampshire, Massachusetts, Pennsylvania, Maryland,
Virginia, North Carolina, South Carolina, Georgia,
no--8.
The words, 'except in cases of impeachment,'
were inserted, nem, con. after 'pardons.'
Two days later, on August 27, 1787, a suggestion was made that the
President should have the authority to grant a pardon only after
the offender had been convicted. That suggestion was quickly
withdrawn, however, after an objection was made to it:
Monday, August 27th, 1787
In Convention, --Article 10, Section 2, being
resumed, --
Mr. L. Martin moved to insert the words, 'after
conviction,' after the words, 'reprieves and pardons. I
Mr. Wilson objected, that pardon before conviction
might be necessary, in order to obtain the testimony of
accomplices. He stated the case of forgeries, in which
this might particularly happen.
Mr. L. Martin withdrew his motion.
Later, Edmund Randolph of Virginia proposed to add the words,
"except in cases of treason. " His motion was rejected by a vote
of 8-2:
Saturday, September 15th, 1787
Article 2, Sect. 2. 'He shall have power to grant
reprieves and pardons for offences against the United
States, &c.
Mr. Randolph moved to except 'cases of trcason.
The prerogative of pardon in these cases was too great
a trust. The President may himself be guilty. The
traitors may be his own instruments.
Col. Mason supported the motion.
Mr. Gouverneur Morris had rather there should be
no pardon for treason, than let the power devolve on the
Legislature.
Mr. Wilson. Pardon is necessary for cases of
treason, and is best placed in the hands of the Executive.
If he be himself a party to the guilt, he can be impeached
and prosecuted.
Mr. King thought it would be inconsistent with the
constitutional separation of the Executive and Legislative
powers, to let the prerogative be exercised by the latter.
A legislative body is utterly unfit for the purpose. They
are governed too much by the passions of the moment.
In Massachusetts, one assembly would have hung all the
insurgents in that State; the next was equally disposed to
pardon them all [Shays Rebellion]. He suggested the
expedient of requiring the concurrence of the Senate in
acts of pardon.
Mr. Madison admitted the force of objections to the
Legislature, but the pardon of treasons was so peculiarly
improper for the President, that he should acquiesce in
the transfer of it to the former, rather than leave it
altogether in the hands of the latter. He would prefer to
either, an association of the Senate, as a council of
advice, with the President.
Mr. Randolph could not admit the Senate into a
share of the power. The great danger to liberty lay in
a combination between the President and that body.
Col. Mason. The Senate has already too much power.
There can be no danger of too much leinity in legislative
pardons, as the Senate must concur; and the President
moreover can require two-thirds of both Houses.
13
2
in the second place, that it would generally be
impolitic beforehand to take any step which might
hold out the prospect of impunity: A proceeding of
this kind, out of the usual course, would be likely to
be construed into an argument of timidity or of
weakness, and would have a tendency to embolden
guilt.
Ultimately, the Founding Fathers concluded that there was no need,
contrary to the English practice, to curtail the President's
authority to grant pardons, except to one particular situation:
cases of impeachment. As one supreme court decision noted:
The framers of our Constitution had in mind no
necessity for curtailing this feature of the kings
prerogative in transporting it into the American
governmental structure save by excepting cases of
impeachment.
(Ex parte Grossman, 267 U.S.
87, 113, 45 S. Ct. 332, 334, 69 L. Ed. 527 (1925).
12-
24
On the motion of Mr. Randolph, --
Virginia, Georgia, aye--2; New Hampshire,
Massachusetts, New Jersey, Pennsylvania,
Delaware, Maryland, North Carolina, South
Carolina, no--8; Connecticut, divided.
Thereafter, Alexander Hamilton, in Federalist No. 74 presented
URE
an argument that the legislative should not have any control
39!
over the pardoning power:
But the principal argument for reposing the power of
pardoning in this case in the chief magistrate, is this:
in seasons of insurrection or rebellion, there are often
critical moments, when a well-timed offer of pardon
to the insurgents or rebels may restore the tranquility
of the commonwealth; and which, if suffered to pass
unimproved, it may never be possible afterwards to
recall. The dilatory process of convening the legisla - -
ture, or one of its branches, for the purpose of obtaining
its sanction, would frequently be the occasion of letting
slip the golden opportunity. The loss of a week, a day,
an hour, may sometimes be fatal. If it should be
observed, that a discretionary power, with a view to.
such contingencies, might be occasionally conferred
upon the president; it may be answered in the first
place, that it is questionalbe, whether, in a limited
constitution, that power could be delegated by law; and
-14-
NOTES
Appendix
The Historical Perspective of Clemency
Chapter I, Constitutional Authority to Pardon
1. U.S. Const. Art II USA 2.
2. United States V. Wilson, 32 U.S. (7 Pet.) 150, 160 (1833).
3. Attorney General's Survey of Release Procedures, Vol. III:
Pardon, 27 (1939).
4. Grupp, Some Historical Aspects of the Pardon in England, 7 Am J. Legal
History 51, 53-54 (Jan, 1963)
Jensen, The Pardoning Power in the American States 1 (1922).
"In cases of flagrant or aggravated injury vengeance was permitted
without waiting for slow redress from law. If any one slew another
openly, he was delivered over to the kindred of the person slain.
If a man detected anyone with his wife or daughter, or with his sister
or mother, within closed doors, or under the same coverlet, he might
slay him with impunity." See Allen, Inquiry into the Rise and Growth
of the Royal Prerogative in England (
)
London.
5. In 1827 See Grupp, Historical Aspects of the Pardon in England, supra
note at 57. Grupp, supra Note 4, at 55.
"As representative of the state, the king may frustrate by his pardon
an indictment prosecuted in his name. In every crime that affects the
public he is the injured person in the eye of the law, and may therefore,
it is said, pardon an offense which is held to have been committed
against himself." See Allen, supra Note 4, at 108.
6. The great Earls obtained the right to exercise a power of clemency
within their jurisdiction. They had the same right as the king to
remit and pardon treasons, murders, and felonies. By the act of 27
Henry VIII, C. 24, the greater part of the privileges that had belonged
to them were taken away. See Allen, supra note 4 at 109.
7. Benefit of clergy "originally
meant that an ordained clerk
charged with a felony could be tried only in the Ecclesiastical Court.
But, before the end of Henry III's reign, the king's court, though it
delivered him to the Ecclesiastical Court for trial, took a preliminary
inquest as to his guilt or innocence
In time it [benefit of
clergy] changed and became a complicated set of rules exempting certain
persons from punishment for certain criminal offenses. It was extended
to secular clerks, then to all who could read." -Humbert, -The Pardoning
Power of the President, at 10. It arose out of the church-state
conflict of the twelfth century. It remained in effect until abolished
by statute.
8. 13 Richard II, St. 2 C. 1
9. Blackstone, Commentaries, Book IV, p. 401. - To circumvent this statute,
the king claimed that he had the right to suspend the execution of a
law and to dispense with its execution in particular cases. The use of
the royal dispensing power was fairly common. It was apparently intro-
duced into English Law by Henry III in about the year 1252. Parliament,
in the English Bill of Rights enacted in 1689, declared that both of
these alleged powers were illegal. Humbert, supra note 7 at 11, P. Brett,
Conditional Pardons and the Commutation of Death Sentences, 20 Modern
Law Review, 131, 133 (1957).
-15-
NOTES
Chapter I, (Contd)
10. 27 Henry VIII, C. 24. It should be noted that notwithstanding this
particular statute, the King's pardoning authority was not absolute.
As previously noted, all those who could claim the "benefit of
clergy" were exempted from criminal responsibility, until it was
abolished by statute in 1827. The institution of sanctuary also
served as an encroachment upon the king's prerogative. If an
offender left the realm, forfeited all of his goods and submitted
to a life of banishment, he could obtain the same effect that a
king's pardon would bestow upon him. See Grupp, Historical Aspects,
supra note 4, at 57-58.
11. 31 Charles II, Stat. 11, C. 2.
12. 1 William and Mary, sess. II, c. 2.
13. 12 and 13 William III, C. 2.
14. As Blackstone put it, the king had no power to pardon "where private
justice is principally concerned" under the doctrine of "non potest
rex gratiam facese cum injuria at damno alirum" (the king cannot
confer a favour by the injury and loss of others).
Blackstone, Commentaries, supra note at 399. Blacksone also states
that the king could not pardon a common nuisance while it remained
unredressed. However, after the abatement of the nuisance, the king
could remit the fine. Blackstone states that although the prosecution
of a common nuisance is vested in the king so as to avoid multiplicity
of suits, it is, until abated, more in the nature of a private injury
to each individual in the neighborhood. In addition, the king could
not pardon an offense against a popular or penal statute after in-
formation has been brought. Once a private individual has brought
such information he acquires a private property right in his part of
the penalty.
15. Stephen, New Commentaries on the Laws of England (London, 1903),
Vol. II, p. 370. A pardon granted by Parliament had one particular
feature that a pardon granted by the king did not. A pardon granted
by an Act of Parliament had to be judicially noticed by a court. It
did not have to be pleaded. However, if an individual received a
pardon by the king under the Great Seal, the pardon had to be pleaded
at a particular stage in the proceeding. An individual who failed to
plead his pardon at the appropriate stage could be held to have
"waived the pardon" and to be precluded from pleading it at a later
stage. See Blackstone, supra note 10 at 402 and Brett, supra note 10
at 132.
7 George 1, ch. 29 (172 ) "The power and jurisdiction of Parliament
is so transcendent and absolute, that it cannot be confined, either
for causes or persons, within any bounds. It has sovereign and un-
controllable authority in the making, conforming, enlarging, restrain-
ing, abrogating, repealing, reviving, and expounding of laws, concern-
ing matters of all possible denominations, ecclesiastical or temporal,
civil, military, maritime, or criminal."
-16-
NOTES
Chapter I, (Contd)
16. Blackstone, Commentaries, supra, note 10, at 401.
17. As soon as war was declared, it was the custom to issue a proclamation
in which a general pardon of all homicides and felonies was granted
to everyone who would serve for a year at his own cost. The terms
were readily accepted, and the king increased his force by a number of
men who would perhaps be inferior to none in courage, though they might
not improve the discipline of the army. The rolls according abound
with instances in which a pardon was alleged for military service,
and allowed without dispute. Grupp, supra note 4, at 58.
18. See Attorney General's Survey, supra note 3 at 30.
19. Blackstone, Commentaries, supra note 10, at 401.
20. P. Brett, supra note 10, at 134.
21. Ibid.
22. Jensen, Pardoning Power in the Colonies, p. 3.
23. Ibid., at 4.
24. Ibid., at 5.
25. Ibid., at 6.
26. Nettels, Curtis P. The Roots of American Civilization. New York:
27. Chitwood, Oliver Perry. A History of Colonial America. New York:
Harper & Brothers.
28. Hale, Nathaniel C. The American Colonial Wars. Wynnewood, PA:
Hales House
29. Morison, Samuel Eliot. The Oxford History of the American People.
New York: Oxford University Press, 1965.
30. Powell, William S.; Huhta, James K.; and Farnham, Thomas J., eds.
The Regulators in North Carolina. Raleigh, NC: State Department
of Archives, 1971.
31. Van Doren, Charles; and McHenry, Robert., 3ds. Webster's Guide to
American History. Springfield, Mass: G & C Merriam Co., 1971.
32. Morison.
33. Jensen.
34. Ibid., p. 10.
35. Constitution of New Hampshire, 1784; Massachusetts, 1780, Part II,
chapt. ii, Sec. 1, Art. 8; New Jersey, 1776, Part IX; Pennsylvania,
1776, Sec. 20; Virginia, 1776, cited in Jensen, Ibid., at p. 10.
36. Ibid., at 10.
37. Ibid., at 10.
38. Tansill, (ed) Documents Illustrative of the Formation of the American
States, Government Printing Office, Washington, D.C., at 620 (1927).
39. The Federalist No. 74, at 500 (J. Cooke Ed. 1961) - In Federalist
No. 69, Hamilton summarized the proposed $2 powers, including the power
to pardon, as "resembl [ing] equally that of the king of Great Britain
and the Governor of New York." Ebid., at 464.
APPENDIX
THE HISTORICAL PERSPECTIVE OF CLEMENCY
II. Clemency During the Nation's Formative Years
A. Continental Congress Recommends Compassion and Mercy
B. Loyalists - the Early Dissenters
C. Washington
D. Adams
E. Jefferson
F. Madison
G. Jackson
-1-
CLEMENCY DURING THE NATION'S FORMATIVE YEARS
Continental Congress Recommends Compassion and Mercy
An early offer of Congressional pardon is recorded in
the Journals of the Continental Congress, April 1778. The
offer was directed toward Americans who had joined the British
forces.
The Resolution prompted Thomas Jefferson, then a member of
the Virginia House of Delegates, to introduce a Bill offering
"full and free pardon" on 13 May 1778. 1 Jefferson's Bill was
practically a verbatim recitation of the April Resolution that
had been issued by the Continental Congress. In writing to
Richard Henry Lee on 5 June 1778, Jefferson advised "We (the
Virginia House) passed the bill of pardon, recommended by
Congress, but the Senate rejected it"? The probable cause of
failure to pass in the Virginia Senate was the unrealistic cut-
off date; "penitents" being required to return by 10 June to be
eligible for pardon. Jefferson's "Bill Granting Free Pardon to
Certain Offenders" is quoted in its entirety:
Whereas the American Congress by their resolution
passed on the 23d. day of April last past, reciting that
persuasion and influence, the example of the
deluded or wicked, the fear of danger or the calamities
of war may have induced some of the subjects of
these states to join aid, or abet the British forces
in America, and who, tho' now desirous of returning
to their duty, and anxiously wishing to be received
and reunited to their country, may be deterred by the
fear of punishment: and that the people of these
-2-
states are ever more ready to reclaim than to
abandon, to mitigate than to increase the horrors
of war, to pardon than to punish offenders: did
recommend to the legislatures of the several states
to pass laws, or to the executive authority of each
state, if invested with sufficient power, to issue
proclamations, offering pardon, with such exceptions,
and under such limitations and restrictions, as they
shall think expedient, to such of their inhabitants
or subjects, as have levied war against any of these
states, or adhered to, aided or abetted the enemy,
and shall surrender themselves to any civil or
military officer of any of these states, and shall
return to the state to which they may belong before the
10th. day of June next: and did further recommend to the
good and faithful citizens of these states to receive
such returning penitents with compassion and mercy,
and to forgive and bury in oblivion their past failings
and transgressions.
Be it therefore enacted by the General assembly
that full and free pardon is hereby granted to all
such persons without any exception who shall surrender
themselves as aforesaid, and shall take the oath of
fidelity to this Commonwealth within one month after
3
their return thereto.
Loyalists The Early Dissenters
At the time of the Revolutionary War, a significant portion of
the American populace chose to support the King; they were called
Loyalists or Tories. It became common practice to require suspected
Loyalists to take an oath of loyalty 50 the United States. Refusal
to renounce the King and swear allegiance to the United States often
resulted in fine, imprisonment, loss of civil rights, or confiscation
of private property. Even Washington is said to have been in favor
4
of hanging a few prominent Loyalists!
3-
Sentiment against Loyalists was so pronounced that many voluntarily
decided to leave their homes; some going into temporary exile,
others permanently settling outside the United States. The majority
while
of Loyalists who left the United States chose Canada, a smaller
number selected Great Britain or the West Indies.
The Peace Treaty of 1783 which granted independence to the
thirteen United States attempted to end disharmony between the
Loyalists and those who fought for independence. Article V of the
Treaty stated in part:
It is agreed that the Congress shall earnestly recommend it
to the legislatures of the respective states, to provide for
the restitution of all estates, rights and properties which
have been confiscated and that Congress shall also earnestly
recommend to the several States a reconsideration and revision
of all acts or laws regarding the premises, so as to render
the said laws or acts perfectly consistent, not only with justice
and equity, but with that spirit of conciliation which, on the
return of the blessings of peace, should universally prevail.
(emphasis added)
Article VI of the Treaty further provided:
NO
That there shall be future confiscations made, nor any
prosecutions commenced against any person or persons for,
or by reason of the part which he or they may have taken
in the present war; and that no person shall, on that account
suffer any future loss or damage, either in his person,
liberty or property; and that those who may be in confinement
on such charges, at the time of the ratification of the
treaty in America, shall be immediately set at liberty,
and the prosecutions so commenced be discontinued. 5
4-
While perhaps as many as 80,000 Loyalists left the States,
their decision to migrate was a voluntary decision. A far larger
number opted to remain in the states and many Loyalists who chose
6
self-exile later elected to return.
Animosity towards the Loyalists was not wholly abated by a
termination of the fighting. But the passage of time, the tremendous
challenge of building a new nation, and the common heritage of the
early Anglo-Americans served to cool tempers and promote the "spirit
of conciliation" which had been promised in the Paris Peace Treaty.
Americans of the 1770's and 1780's--revolu ionaries and counter-
revolutionaries alike--shared too many common beliefs to become
permanently estranged from one another. The dissonance of the 1770's
gave way to unity of purpose after Great Britain acknowledged the
independence of the United States.
Washington
The pardoning power of the President was first
exercised by George Washington in his dealings with the
insurrectionists of Western Pennsylvania. Many of the
Western Pennsylvania mountain men operated stills to produce
corn whiskey and they objected to the attempts of Federal
revenuers to collect an excise tax on the whiskey they distilled.
-5-
Their opposition to the tax grew into an armed rebellion in
which the home of the District Inspector of Revenues was set
7
ablaze. Treasury Secretary Hamilton urged prompt and firm
action against the rebels, action that would clarify and
8
strengthen the authority of the Federal government.
Washington called for an end to the insurrection in a
Proclamation issued 7 August 1974:
I
do hereby command all persons being insurgents
on or before the 1st day of September next to disperse and
9
retire peaceably to their respective abodes
The unrest continued and Washington found it necessary to
mount an expedition against the rebels. (The Federal govern-
ment's reaction to the Whiskey Rebellion brought a tangential
issue to light--the merits of a standing army versus the merits
of a militia that could be Federalized or could provide
volunteers in time of need.) In a second Proclamation, issued
25 September 1974, Washington stated:
the moment is now come when the overtures of
forgiveness, with no other condition than a sub-
mission to law, have been only partially accepted;
when every form of conciliation not inconsistent
with the being of Government has been adopted without
effect
10
6-
The President accepted his title of Commander-in-Chief
literally; he took to the field, traveling to Carlisle,
Pennsylvania to see first hand the troops that were being
formed for the trek across the Alleghenies and into the
Western counties of Pennsylvania. The encounter between
the rebels and the Federal forces was rather anti-climactic,
the rebels melted away upon the approach of the Federals.
In his third Proclamation relating to the Whiskey
Rebellion, President Washington on 10 July 1795, granted
a "full, free and entire pardon" to all insurrectionists
except those under indictment. The two ringleaders of the
rebellion were convicted of treason but were subsequently
11
pardoned by the President.
In explaining to Congress his use of the President's
constitutionally derived pardoning power, Washington said
"For though I shall always think it a sacred duty
to exercise with firmness and energy the Constitutional
powers with which I am vested, yet my personal feeling
is to mingle in the operations of the government every
degree of moderation and tenderness which the national
justice, dignity, and safety may permit."
-7-
Adams
Like Washington, President Adams encountered a group of rebellious
Pennsylvanians during his tenure in office. The trouble began when the
Federal Government attempted to collect $237,000 from Pennsylvanians by levying
12
a tax against houses, land and negro slaves.
John Fries, an auctioneer well-known in the community, was the principal
agitator and the calamity came to be known as Fries' Rebellion. Fries had
served with the troops that put down the Whiskey Rebellion but he now found
himself opposing the Federal Government.
The beginning of the Fries Rebellion is recounted in Adams' Proclamation
of 12 March 1799 commanding the insurgents "to disperse and retire peaceably":
the said persons, exceeding one hundred in number and armed and
arrayed in a warlike manner,
having impeded and prevented the
commissioner
by threats and personal injury, from executing the said
laws
13
In his 3 December 1799 address to the Sixth Congress, President Adams
reported further on the Fries Rebellion:
the people in certain counties of Pennsylvania (having) openly
resisted the law directing the valuation of houses and lands
it became necessary to direct a military force to be employed
14
After the insurrectionists had freed prisoners taken by the US Marshal,
Fries was arrested by Federal troops and charged with treason. He was found
15
guilty and a death sentence was imposed. President Adams, however, pardoned him.
By his Proc lamation of 21 May 1800, President Adams pardoned all
insurrectionists except those then under indictment or standing convicted. Adams
stated that future prosecutions were unnecessary since "peace, order, and
submission to the laws of the United States were restored
the ignorant,
misguided and misinformed counties (having) returned to a proper sense of
their duty.
"
16
-8-
Jefferson
Although Washington pardoned purticipants in the Whiskey Rebellion
and Adams issued pardons to certain Pennsylvania insurrectionists,
Thomas Jefferson was the first US President to grant a pardon to
military deserters. Desertion from the Continental Army had been
in the post-war era
rampant throughout the Revolution but/neither Washington nor Adams
ordered action against war-time deserters.
On 15 October 1807, Jefferson offered deserters full pardon in
exchange for their surrender to the military and return to duty.
The Proclamation in its entirety reads:
Whereas information has been received that
a number of individuals who have deserted
from the Army of the United States and
sought shelter without the jurisdiction
thereof have become sensible of their
offense and are desirous of returning
to their duty, a full pardon is hereby
proclaimed to each and all of such individuals
as shall within four months from the date
hereof surrender themselves to the commanding
officer of any military post within the
17
United States or the Territories thereof.
Twelve days after signing the Proclamation, in his Seventh Annual
Message to the Senate and House of Representatives, Jefferson
cited circumstances which "seriously threatened the peace of our
18
country.
"
Thus , it may be conjectured that Jefferson offered
the pardons as a means of building up the size of the Army in a
time of national peril.
-9-
Jefferson's inclination to favor clemency for deserters is reflected
in a letter he wrote to General Washington in the spring of 1775 suggesting
a pardon for a Revolutionary War soldier who had voluntarily turned himself
over to Army authorities.
The bearer Horseley enlisted for 2 years
In the winter
now past, and before his time was out, he was unfortunate enough
to desert from the service
I let him know that
if he would
come in I would venture to state the fact to your excellency that
he might have all the benefit which a voluntary return to duty and
resignation of his life into your hands would give him, and could
not help hoping he would obtain your pardon if it could any way
square with the rules you may have laid down
Having now discharged
my promise and returned I hope a good soldier to the use 19f his
country; the residue remains with your excellency.
Madison
In 1812 the United States was ill-prepared to go to war. The Army
ranks were so insubstantial in number as to be an almost totally impotent
force. The defense policy of the new nation had been the maintenance of
a small standing Army with the thought that, in time of actual war, the
militia would be used. But many governors were hesitant to order out their
troops for participation in "Mr. Madison's War"; a war they violently opposed.
The New England States took the position that the militia were available as
a Federal force only for the purposes of suppressing insurrection or repelling
invasion. As they understood the Constitution, the militia should not be
mobilized to participate into a foray into Canada. For the first time in our
Nation's history, the idea of drafting men into the Army was proposed, but
20
Daniel Webster and others spoke our forcefully against involuntary inductions.
The anti-war faction lost the national elections of December, 1812 and
President Madison was re-elected. With many Governors refusing to call out
the Militia, and with Congress unalterably opposed to conscripting an Army,
it became necessary to offer land bounties to entice enlistments. This had the
unfortunate result of causing soldiers to desert and then reenlist in another
regiment under another name in order to collect another bounty.
-10m
Madison issued three amnesty proclamations that may have been intended
to return deserters to duty so that they could participate in the war with
Great Britain. These proclamations issued 7 February 1812, 8 October 1812, and 17 June
1814 were granted with the understanding that the deserters had "become
sensible of their offense and desirous of returning to duty. " 21 To receive
pardon, deserters were required to surrender at a military post.
The Army had been accustomed
to dealing harshly with apprehended deserters.
Just 10 days before Madison's 17 June 1814 pardon of deserters, Brigadier General
Winfield Scott (at 27, the youngest general in the Army) had caused his troops
to witness the execution of soldiers who had been convicted of desertion and
sentence to death. General Scott apparently thought that forcing his troops
to witness this punishment would remove the temptation to desert. The 5 deserters
under death sentence were placed next to open coffins and newly dug graves. The
volley of fire by the appointed executioners killed 4 of the deserters. It had
that
been earlier decided the fifth a teenager--would be spared and no live rounds
22
were aimed at him.
In. December 1814, Massachusetts put out a call for the New England States
to participate in a secret meeting that had as one of its purposes an earnest
discussion of secession. This meeting came to be known as the Hartford
Convention. Immediate secession was quickly ruled out and commissioners were
named to proceed to Washington to discuss th- Report and Resolutions of the
Convention with President Madison. Many of those attending the Convention
believed that if Congress failed to respond adequately to the demands of the
23
Convention, secession would then take place.
-11-
While enroute to Washington, the Commissioners learned of Jackson's
Victory at New Orleans and arriving in Washington, word reached them of the
Treaty of Ghent. With the United States having avoided defeat and with peace
at hand, the commissioners could only abandon their mission. One of the
resolved clauses of the Report is of especial interest:
That it be and hereby is recommended to the legislatures of
the several states represented in this Convention, to adopt all
such measures as may be necessary efectually to protect the
citizens of said states from the operation and effects of all
acts which have been or may be passed by the Congress of the
United States, which shall contain provisions, subjecting the
militia or other citizens to forcible drafts, conscriptions,
or impressments 24 not authorized by the constitution of the
United States.
Madison issued a fourth amnesty proclamation on 6 February 1815. The
1815 Proclamation is unique with respect to the class of offenders pardoned-
it is specifically addressed to Jean Lafitte's pirates:
provided, that every person claiming full benefit of this
pardon in order to entitle himself thereto shall produce a
certificate in writing from the governor of the State of
Louisiana stating that such person has aided in the defense
of New Oreleans and the 25 adjacent country during the invasion
thereof as aforesaid.
While most amnesties have dealt with war dissenters, Madison amnestied
pirates who came to the aid of their country. Lafitte's men had spurned a cash
offer by the British, choosing instead to join with General Jackson at the
Battle of New Or leans.
-12-
Jackson
President Andrew Jackson extended a form of Executive clemency to
military deserters in 1830. Jackson's action was prompted by Congressional
repeal of the law imposing the death penalty for peacetime desertion. War
Department General Order Number 29, issued by Secretary of War Eaton on 12
June 1830, provided that deserters under sentence of death and all deserters
remaining unapprehended were to be discharged from the Army and barred
from future enlistment. Personnel who were under arrest for desertion were
to be returned to duty. An excerpt from the General order suggests that
forgiveness, compassion, and generosity were not the most compelling
motives underlying the Executive clemency to deserters not then under
militany control:
It is desirable and highly important that the
ranks of the Army should be composed of
respectable, not degraded, materials. Those
who can be so lost to the obligations of a
soldier as to abandon a country which morally
they are bound to defend, and which solemnly
they have sworn to serve, are unworthy, 26 and
should be confided in no more.
The spirit of reconciliation generally found in acts of Executive clemency
is absent from Jackson's Order. Rather, the deserters still at large were
characterized as unworthy and undeserving of redemption through subsequent
military service.
-13-
NOTES
Appendix
The Historical Perspective of Clemency
Chapter II, Clemency During the Nation's Formative Years
1. Boyd, Julian P., ed. The Papers of Thomas Jefferson. Vol 2.
Princeton, NJ: Princeton University Press, 1950.
2. Ibid.
3. Ibid.
4. Leckie, Robert. The Wars of America. Vol 1. New York: Harper
& Row, 1968.
5. Commager, Henry Steele, ed. Documents of American History.
New York: Meredith Corp., 1968.
6. Morison, Samuel Eliot. The Oxford History of the American People.
New York: Oxford University Press, 1965.
7. Weigley, Russell F. History of the United States Army.
New York: The MacMillan Company, 1967.
8. Ward, Harry M. The Department of War, 1781-1795. Pittsburgh,
Pennsylvania: University of Pittsburgh Press, 1962.
9. Commager
10. Richardson, James D., ed. Compilation of the Messages and
Papers of the Presidents, 1789-1897. Vol 1. Washington: GPO, 1907.
11. Morison
12. McMaster, John Bach. A History of the People of the United States.
Vol II. New York: D. Appleton and Company, 1921.
13. Richardson
14. Ibid.
15. Morison
16. Richardson
17. Ibid.
18. Ibid.
19. Boyd
20. Van Doren, Charles; McHenry, Robert. Webster's Guide to American
History. Springfield, Mass: G. & C. Merriam Company, 1971.
21. Richardson
22. Elliott, Charles Winslow. Winfield Scott. New York: The
MacMillan Company, 1937.
23. Morison
24. Commager
25. Richardson
26. Ibid. Vol II.
APPENDIX
THE HISTORICAL PERSPECTIVE OF CLEMENCY
Chapter III. Civil War
A. Lincoln
1. Conscription
2. A Clemency-minded President
B. Johnson
1. Congress Attempts to Curtail Presidential Power to Amnesty
2. Union Army Deserters
3. Confederate Army Deserters
4. General Robert E. Lee
C. Grant
CIVIL WAR
Lincoln
Throughout the Civil War, President Lincoln was besieged with individual
applications for Executive Clemency. Official War Department records (Adjutant
General's Office Special Orders) are replete with Presidentially-directed
pardons granted soldiers who had been convicted of desertion. Here is a
sampling of individual actions taken by Lincoln during January 1864 concerning
1
Union Army deserters:
Jan 7. "This boy having served faithfully since is pardoned
for the old desertion. 11
Jan 12. "If David Levy shall enlist and serve faithfully for one year
or until otherwise honorably discharged I will pardon him for
the past. "
Jan 13. "If Henry Stork of, 5th. Pa. Cavalry has been convicted of
desertion, and is not yet executed, please stay till further
order & send record."
Jan 21. "Let the unexecuted portion of the sentence be remitted and
the soldier be returned to duty with his regiment to serve
his full enlistment including period of absence."
Jan 23. "Pardon on condition of re-inlisting and faithfully serving
a term. "
Some deserters, knowing they were under death sentence, voluntarily appeared
at the White House and placed themselves at the mercy of the President. Lincoln's
practice was to telegraph a full pardon to the soldier's Commanding General
with the understanding that the individual would faithfully serve out his
term of enlistment.
One hundred forty one Union soldiers were executed for desertion. In
a letter to Erastus Corning on 12 June 1863, Lincoln wrote:
Long experience has shown that armies cannot be
maintained unless desertion shall be punished
by the severe penalty of death. (But) Must I
shoot a simple-minded soldier boy who deserts
(and) not touch a hair of a wiley agitator who
induces him to desert? 2
The "wily agitator" was C. L. Vallandigham, former member of the U.S. House
of Representatives. Lincoln believed "The enemy behind us is more
dangerous to the country than the enemy before us" and he took the unusual
step of having Vallandigham exiled to the Confederacy.
Vallandigham had been placed under military arrest on 5 May 1863 and
the following daya Military Commission found him guilty of declaring
"disloyal sentiments and opinions" and sentenced him to be kept in
confinement "during the continuance of the war" 3 Lincoln altered the
sentence on 19 May 1863 by directing Vallandigham be delivered to the
Confederate lines.
Conscription
As a Member of Congress, Vallandigham had spoken against the war,
saying it ought not to continue, "not a day, not an hour" 4 Vallandigham
vigorously fought enactment of the Conscription Bill. In an impassioned
plea to his fellow Representatives he said:
Behold here a stupendous Conscription Bill for
a standing Army of more than three million men,
forced from their homes, their families, their
fields, and their workshops;
This bill is
a confession that the people of the country_are
against this war.
The Conscription Bill became law and there were four national draft
calls in 1863 and 1864. But there were many ways to avoid service even
if one's name were drawn. Of the 776,827 names drawn, only 46,347
entered the military. A draft call consisted of a levy in each Congressional
District and if sufficient volunteers signed up to meet the quota, there
would be no involuntary inductions in that District. Wards and cities
often offered bounties to recruits as a means of securing enough enlist-
ments to forestall involuntary inductions. A conscript could gain
exemption from duty by paying a $300 commutation fee, or he could simply
hire a substitute to take his place.
During the Civil War the exodus to Canada and other countries grew
to such proportions that the President decreed that "no citizen liable
to be drafted into the mili-ia shall be allowed to go to a foreign
country". In August 1862, Secretary of War Stanton ordered that draft
eligibles who left their country or state to avoid a draft call would
be arrested and summarily placed on military duty. The writ of habeas
corpus was suspended for these "skedaddlers". Immediately upon apprehnsion,
they were to be placed on military duty without further formalities.
They were required to bear the expenses of their arrest and conveyance
to the nearest military installation. Draft evaders apprehended and
placed on military duty were to have $5 deducted from their pay and
5
given as a reward to the officer who arrested them.
A Clemency-Minded President
On December 6, 1864, in his Annual Message to Congress, Lincoln spoke of
clemency:
A year ago general pardon and amnesty, upon specified terms, were offered
to all, except certain designated classes; and, it was, at the same time,
made known that the excepted classes were still within contemplation of
special clemency. During the year many availed themselves of the general
provision, and many more would, only that the signs of bad faith in some
led to such precautionary measures as rendered the practical process less
easy and certain. During the same time also special pardons have been
granted to individuals of the excepted classes, and no voluntary application
has been denied. Thus, practically, the door has been, for a full year,
open to all, except such as were not in condition to make free choice--
that is, such as were in custody or under constraint. It is still so open
to all. But the time may come--probably will come-when public duty shall
demand that it be closed; and that, in lieu, more rigorous measures than
heretofore shall be adopted. (emphasis added)
Abraham Lincoln was a clemency-minded President but the amnesties
that he promised were limited in scope and conditional in nature. Lincoln's
many acts of individual pardon testify to his compassionate nature. HiS
amnesty proclamations attest not only to his desire to heal the nations wounds
but also his political and military wisdom. Lincoln's first offer of pardon
to Union Army deserters required that deserters must rejoin their units to
benefit from the amnesty. Later in the same year (1863) Lincoln appealed
to supporters of the Confederacy to abandon Jefferson Davis and swear an
oath of allegiance to the United States. This entreaty to rebels to abandon
their errant ways was surely an effort to weaken the Confederate forces.
Confederate deserters were exempted from conscription; they also were barred
from enlisting in the Union Army as recruits or as substitutes for conscripts.
During the confusion attendant to the early stages of the war, a great
many persons were detained as political prisoners by the North. Some of those
detained had aided the Confederacy, some had not; there were many among the
first group who had second thoughts about their earlier support of the Confederacy.
President Lincoln, acting through Secretary of War Stanton, issued "Executive
Order No. 1, Relating to Political Prisoners" on 14 February 1862. In this
Order, the President direct ed
that all political prisoners or state prisoners now held in military
custody be released on their subscribing to a parole engaging them
to render no aid 6 or comfort to the enemies in hostility to the
United States.
The Order promised "To all persons who shall be so released and who. shall
keep their parole the President grants an amnesty for any past offenses of
treason or disloyal by which they may have committed".
The Confiscation Act of 17 July 1862 contained a section authorizing the
President to amnesty persons "who may have participated in the existing
rebellion. 117 Such authority, of course, was superfluous inasmuch as Lincoln
already possessed such powers through the Constitution.
By Presidential Proclamation on 10 March 1863, Lincoln commanded all
soldiers absent without leave to return to their military units. Absent soldiers
who responded by/April 1863 were promised that they would suffer no punishment
other than forefeiture of pay and allowances for the period of their absence.
8
On 8 December 1863, President Lincoln offered pardon to certain individuals
who had participated in the Rebellion. Such individuals could be pardoned
by subscribing to the following oath of allegiance:
I
,
do solemnly swear, in the presence of Almighty
God " that I will henceforth faithfully support, protect,
and defend the Constitution of 9 the United States and Union
of the States thereunder
Lincoln specifically excluded Confederate Leaders from eligibility. The
proclamation further provided that any Confederate State could be returned to
the Union when subscribers to the oath equalled in number not less than 10
percent of the number of the State's voters in the 1860 Presidential election.
Thus, Lincoln's Proclamation of 8 December 1863 appears to have been designed
mainly as an instrument to take support away from the Confederate effort by
offering conditions under which a seceded state could be restored to the Union.
This proclamation was clarified on 26 March 1864 by specifying that certain
persons (mainly prisoners of war) were not eligible for the amnesty offer.
Leaders of the Rebellion remained unamnestied until 1898 in the sense
that the Fourteenth Amendment precluded them from holding military or civil
office. Although never brought to trial, Jefferson Davis was imprisoned
at Fortress Monroe from 10 May 1865 to 13 May 1867. Had it not been for
the political disability imposed by the Fourteenth Amendment to the Constitution,
Jefferson Davis most certainly could have served as a Senator from Mississippi
after the Civil War. But it would have been necessary for him to seek a
Presidential Pardon and he apparently was unwilling to public repent and
take the necessary oath of allegiance. Davis was still barred from holding office
at the time of his death in 1889.
7
Lincoln had been in the habit of responding favorably to requests for
leniency in the cases of deserters under death sentence. He finally caused
War Department General Orders No. 76 to be issued 26 February 1864 providing
the sentences of all deserters who have been condemned
by court-martial to death, and that have not been otherwise
10
acted upon by him, be mitigated to imprisonment during the war
Provision was made for restoration to duty of deserters who commanding generals
determined would be of service to the Army.
Lincoln's second. and last--offer of amnesty for Union Army deserters was
contained in his Presidential Proclamation of 11 March 1865. Deserters were
required to return to duty within sixty days and to serve a period of time equal
to their original enlistment. This Proclamation was not the result of Presidential
initiative; it was a response to an act of Congress (3 March 1865) requiring the
President to issue a proclamation extending an offer of pardon to deserters.
Congress took notice of draft evaders as well as deserters and acknowledged
that some persons left the United States to avoid the draft:
all persons who, being duly enrolled, shall
depart the jurisdiction of the district in which
he is enrolled, or go beyond the limits of the
United States with intent to avoid any draft into
the military or naval service, duly ordered, shall
be liable to the penalties of this Section. 11
Deserters not responding affirmatively to the Proclamation were deemed to
12
have "voluntarily relinquished and forfeited their rights of citizenship".
The War Department Provost-Marshal-General's Office reported on 11
September 1865 that only 1,755 deserters surrendered themselves under this
13
Proclamation.
-8-
Johnson
Approximately five months after being elected Vice President, Andrew
Johnson was sworn in as President succeeding the assassinated Lincoln.
A few days after assuming the Presidency, Andrew Johnson wrote his Attorney-
General (Speed) for guidance concerning Presidential powers of pardon and
amnesty. The detailed response of the Attorney-General is found in
The War of the Rebellion, Series III, Vol. V., (Washington: GPO, 1907) :
ATTORNEY-GENERAL'S OFFICE,
May s, 1805.
The PRESIDENT:
The power of exercising and extending mercy resides in some depart-
ment of every well-ordered government. When order and peace reign
its exercise is frequent and its influence valuable. Its influence is of
value inestimable at the termination of an insurrection SO widespread
as the one which in our country is just being suppressed. Its appro-
priato office is to soothe and heal, not to keep alive or to initiate the
rebellious and malignant passions that induced, precipitated, and
sustained the insurrection. This power to soothe and heal is appro-
priately vested in the Executive Department of the Government,
whose duty it is to recognize and declare the existence of an insur-
rection, to suppress it by force, and to proclaim its suppression.
When men have offended against the law their appeal is for mercy,
not for justice. In this country and under this Government viola-
tors of the law have offended against a law of their own making; out
of their own mouths they are condemned-convicted by their own
judgments-and, under a law of their own making, they cannot
appear before the seat of mercy and arrogantly claim the fulfiliment
of a promise of pardon they have refused and defied.
The excellence of mercy and charity in a national trouble like
ours ought not to be undervalued. Such feelings should be fondly
cherished and studiously cultivated. When brought into action they
should be generously but wisely indulged. Like all the great, neces-
sary, and useful powers in nature or in government, harm may come
of their improv ident use, and perils which seem past may be renewed,
and other and new dangers be precipitated. By a too extended,
thoughtless, or unwise kindness the man or the government may
warm into life an adder that will requite that kindness by a fatal
sting from a poisonous fang.
-9-
Society in the rebel States has not
been and is not now in a normal condition, nor in harmony with the
principles of our Government. That society has rebelled against
them, and made war upon the principles and powers of our Govern-
ment. In so doing it has offended, and stands a convicted culprit.
Mercy must be largely extended. Some of the great leaders and
offenders only must be made to feel the extreme rigor of the law-not
in a spirit of revenge, but to put the seal of infamy upon their con-
duct. But the merey extended to the great mass of the misguided
people can and should be 80 used as to reorganize society upon a loyal
and freedom-loving basis. It is manifestly for their good, and the
good of mankind, that this should be done. The power of pardon
and mercy is adequate to this end. Such conditions, precedent and
subsequent, can legally and properly be appended as will root out the
spirit of rebellion and bring society in those States into perfect accord
with the wise and thoroughly tried principle of our Government.
If this power of pardon is wisely used, peace will be established upon
a sure and permanent basis.
JAMES SPEED,
Allorney- General.
On
29 May 1865, just six weeks after becoming President, Johnson issued an
amnesty proclamation directed toward those who had supported the Confederacy.
In his Proclamation, Johnson stated the purpose of his grant of amnesty and
pardon to be "in order that the authority of the government of the United
14
States may be restored, and that peace, order and freedom may be established"
Of the fourteen classes of persons excluded from the grant of amnesty,
two are of special interest:
all persons who have been or are absentees from the
United States for the purpose of aiding the rebellion.
all persons who have voluntarily participated in said
rebellion and the 15 estimated value of whose taxable property
is over $20,000.
Of these two excluded classes, the first was aimed primarily at draft-evaders
who had fled to Canada. The second arises from Johnson's belief the Civil War
was of economic origin
provoked by rich slave-owners.
Johnson's amnesty proclamations for rebels followed the policy set by his
-10-
Individuals in the excepted classes were eligible to make application for
pardon to the President; the Proclamation promising" clemency will be liberally
extended as may be consistent with the facts of the case and the peace and
dignity of the United States. "
Although the Civil War ended in the Spring of 1866, it was 7 September 1867
before Johnson announced a further amnesty for Confederates. As in his May 1865
Proclamation the taking of an oath was a precondition to receiving amnesty.
While Johnson's first amnesty had fourteen classes of persons excepted from
eligibility, few were excluded under the 1867 proclamation. Principal
exclusions were high officials of the Confederacy, persons in confinement
or on bail, and individuals involved in the assassination of Lincoln.
The Proclamation contained wording strongly supportive of a need for clemency:
Whereas a retaliatory or vindictive policy---could only
tend to hinder reconciliation
and
Whereas
full and beneficent pardon
should be opened
the further extended to a large number of the persons
16
who
have been hitherto excluded from Executive clemency
Shortly after his impeachment trial was concluded, Johnson discussed a further
amnesty with his cabinet. The idea of a universal amnesty for all rebels was
seriously considered but finally rejected. Jefferson Davis and others indicted
for treason or felony were excluded from the amnesty announced 4 July 1868.
A political motive can be perceived in this amnesty, since it was issued on the
opening day of the Democratic National Convention. However, southereners
apparently resented that the amnesty was not universal, and Johnson failed to
17
receive the Democratic nomination.
The Independence Day 1868 Proclamation provided:
Whereas it is believed that amnesty and pardon will tend to secure
a complete and universal establishment and prevalence of municipal law
and order in conformity with the Constitution of the United States, and
to remove all appearances or presumptions of a retaliatory or vindictive
policy
hereby proclaim and declare, unconditionally and without
reservation, to all and to every person who, directly or indirectly,
participated in the late insurrection or rebellion, excepting such person
or persons as may be under presentment or indictment in any court of the
United
-11-
Jefferson Davis had earlier been released from prison but, being under
indictment, he could not benefit from the 4 July 1868 amnesty. His trial had
been postponed because of the impeachment proceedings against President Johnson.
Johnson, nearing the end of his term, issued a universal and unconditional
amnesty on Christmas Day 1868, thus setting the stage for dismissal of the
indictment against the former President of the Confederacy.
This fourth and final rebel amnesty by Johnson extended
to all and to every person who, directly or indirectly,
participated in the late insurrection or rebellion a full
pardon and amnesty for the offense of treason agains t the
United States or 19 of adhering to their enemies during the late
Civil War
Congress Attempts to curtail Presidential Power to Amnesty
In January, 1867
Congress enacted a measure intended to deprive
President Johnson of his power to proclaim general amnesty. Congress
had appointed a Joint Committee on Reconstruction in December 1865
and most of the testimony received by the Committee indicated that
Johnson's clement attitude toward secessionists an attitude
expressed by his amnesty proclamation and his liberal grant of
pardons was impolitic. Johnson's opponents in Congress had been
refusing to seat senators and representatives from the former
Confederate States. The Joint Committee was of a same mind. The
Committee held that only Congress could restore political rights
and that the Confederate States were not entitled to representation
in Congress.
The powers of conqueror are not so vested
in the President that he can fix and
regulate the terms of settlement and
-12-
Section Three to the Fourteenth Amendment to the Constitution
(proposed 13 June 1866, ratification completed 9 July 1868)
specifically invalidated any restoration of political rights by
political pardon. Instead, it provided that the political disability
imposed by Section Three could be removed only by a two-thirds vote in each
House. Congressional action had removed the disability for 4,616 individuals
by 4 March 1871. By subsequent Congressional action, the disability was
removed for certain persons in 1872 and, in 1898 the disability imposed by
21
Section Three was removed for all surviving Confederates.
A conflict existed between Section Three of the Fourteenth Amendment and
Section Thirteen of the Confiscation Act of 1862, inasmuch as the Con-
fiscation Act provided
The President is hereby authorized at
any time hereafter, by proclamation to
extend to any persons who may have
participated in the existing rebellion
in any state or part thereof, pardon
and amnesty
Superimposed over this conflict was the already established
Constitutional right of the President to grant pardons. Yet Congress
displayed a clear intention to curtail the President's pardoning
power and, perhaps less clearly, to reserve unto itself the power
to grant amnesty.
-13-
Congress repealed Section Thirteen of the Confiscation Act in
January 1867/ Senator Trumbull of Illinois apparently having
persuaded his colleagues that the Section unwisely broadened the
pwers of the President by authorizing the President to grant pardon
and amnesty by proclamation. In Trumbull's judgment, the
Constitution conferred on the President the right to grant
individual pardons only;
any power to issue amnesty proclamations
would have to be bestowed upon the President by Congressional action.
Senator Johnson of Maryland led the unsuccessful opposition to the
legislative proposal; he argued the power to grant amnesty by
proclamation belonged to the President by heritage as well as by
22
Constitutional right.
President Johnson vetoed the legislation repealing the amnesty
powers set out in the Confiscation Act, but Congress overrode his
veto. Congress thus set the stage for one of the grounds of
impeachment--the President's abuse of the pardoning power.
In 1866 the Supreme Court (Ex parte Garland) declared
that the "power of the President is not subject to legislative
control
Congress can neither limit the effect of his pardon
,
nor exclude from its exercise any class of offenders. Neither
the Fourteenth Amendment nor the report of the Joint Committee
had deterred Johnson from his policy of issuing pardons generously.
-14-
He advised the Senate on 18 January 1869
The resolution adopted (5 December 1868)
requesting the President "to transmit to
the Senate a copy of any proclamation of
amnesty made by him since the last ad-
journment of Congress, and also to commun-
icate to the Senate by what authority of
law the same was made, " has been received.
I accordingly transmit herewith a copy of
a proclamation dated the 24 day of December
last. The authority of law by which it
was made is set forth in the proclamation
itself, which expressly affirms that it
was issued "by virtue of the power and
authority in vested by the Constitution,
and in the name of the sovereign people
of the United States, " and proclaims and
declares "unconditionally and without
reservation, to all and to every person
who, directly or indirectly, participated
in the late insurrection or rebellion, a
full pardon and amnesty
"
The Federal Constitution is understood to
be and is regarded by the Executive as the
supreme law of the land. The second section
of article second of that instrument provides
that the President "shall have power to
grant reprieves and pardons for offenses
against the United States, except in cases
of impeachment." The proclamation of the
25th ultimo is in strict accordance with
the judicial expositions of the authority
23
thus conferred upon the Executive
-15-
Union Army Deserters
With the ending of the war, great numbers of Union Army soldiers headed
home without waiting for official release from service. President Johnson (on 3
July 1866) promised pardon without punishment except forfeiture of pay for
deserters who return to duty by 15 August 1866. The Adjutant-Generals Office
reported on 20 October 1866 that "three hundred and fourteen availed themselves
24
of this act of clemency. "
In a report to the Secretary of War in March 1866, the Provost-Marshal-
General spoke against leniency toward deserters:
The want of adequate means for the arrest of deserters in the
early part of the war, and the consequent impunity with which they
returned to and remained at their homes, and the failure to administer
prompt and adequate punishment for the worst phases of the crime,
when occasion offered, contributed more, perhaps, than anything else
to the evil of desertion.
Lives sacrificed, battles lost, and war prolonged, in consequence
of the depletion of the ranks of the armies by desertion, were the
natural fruits of the want of rigor in dealing with this evil in the
early stages of the war. Undue mercy to deserters was in reality
harsh cruelty to those who remained true to their flag. 25
The Provost-Marshal-General's September 1869 report stated "two hundred and
sixty: thousand three hundred and thirty-nine men have been reported to this
office as deserters from the Army". General Fray, the Provost-Marshal-General,
further reported that "seventy-six thousand two hundred and fifty-three deserters
have been arrested by this Bureau. " Not included in the above figures, but
nevertheless deserters under the law, were 161,286 conscripts who failed to report.
General Fry estimated that 25 - 30% of these individual reported as deserters
should not have been so recorded, thus making "the total number of deserters still
26
at large 230,148.
"
The Deserters Branch of the Provost-Marshal-General's Bureau reported
"In 1863 the monthly desertions averaged 4,647; in 1864 they averaged 7,333;
27
in 1865 they averaged 4,368."
-16-
Confederate Deserters
Just as the United States put forth calls for Union Army deserters to
return to duty, the Confederacy also appealed to its absent soldiers to come
back to military control.
On 11 August 1863 a general pardon was offered to AWOL Confederate soldiers
provided they returned to their duty posts within twenty days. The General
Orders promulgating the offer of pardon also provided that "all men who have
been accused or convicted, and undergoing sentence for absence without leave
or desertion, excepting those who have been twice convicted of desertion, will
28
be returned to their respective commands for duty. "
According to Robert E. Lee, the 11 August pardon had just the opposite effect
on the Confederate soldier from that for which it was designed. General Lee
wrote President Jefferson Davis that many soldiers were enticed to desert by
the amnesty:
Immediately on the publication of the amnesty, which I thought would
be beneficial in its effects, many presumed on it, and absented themselves
from their commands, choosing to place on it a wrong interpretation.
I would now respectfully submit to your rexcellency the opinion
that all has been done which forbearance and mercy call for, and that
nothing will remedy this great evil which so much endangers our
cause excepting the rigid 29 enforcement of the death penality in future
in cases of conviction.
Lee complained about leniency toward deserters again in a 30 October 1863
to the Secretary of War:
a number of men were pardoned, and the consequence was a
recurrence of desertion to a most alarming extent. A return to
a sterner discipline was found to be absoutely necessary
I fear that pardons, unless for the best of reasons, will not
only make all the blood that has been shed for the maintenance
of discipline useless, but will result in the painful necessity
of shedding a great deal more
It must be remembered that the
punishment of death for desertion 30 is inflicted almost exclusively
for the warning of others
-17-
Toward the close of the Rebellion, Lee exhibited a somewhat different
attitude. In early February 1865, the Congress of the Confederate States of
America passed an act providing for appointment of a General-in-Chief to
command the military forces of the Confederacy. General Lee was elevated to
this new post and he immediately wrote Jefferson Davis concerning the problem
of deserters from the Army of the Confederacy. President Davis responded:
Your proposition to issue a proclamation, calling all deserters
and other absentees to return to their proper commands, on the
ground of pardon, if they do so within a certain time, is approved
It will be well to warn all soldiers that this is the last inter-
position by an amnesty for deserters; but the pardoning power, as
used, is rather a revisory than a pardoning function. 31
In his General Orders No. 2 of 11 February 1865 (G.O. No. 1 was the assumption
of command order) Lee wrote of the need for "a sterner admonition to those who
have abandoned their comrades in the hour of peril". The Order provided:
By authority of the President of the Confederate
States, a pardon is announced to such deserters and
men improperly absent as shall return to the
commands to which they belong within the shortest
possible time, not exceeding twenty days from the
publication of this order, at the headquarters of
the department in which they may be.
Those who have deserted to the service of the enemy,
or who have deserted after having been once pardoned
for the same offense, and those who shall desert or
absent themselves without authority after the pub-
lication of this order, are excluded from its
benefits. Nor does the offer of pardon extend to
other offenses than desertion add absence without
permission.
By the same authority it is also declared that no
general amnesty will again be granted, and those
who refuse to accept the pardon now offered, or who
shall hereafter desert or absent themselves without
leave, shall suffer such punishment as the courts
may impose, and 32 no application for clemency will be
entertained.
At the end of the month , Lee was obliged to report to the Secretary of
22
-18-
General Robert E. Lee
In 1970 an oath of amnesty executed by General Robert E. Lee in 1865 was
belatedly uncovered. Following this discovery (some contend the oath was never lost
and was on public display years ago) an effort to restore full citizenship
rights to General Lee received much public attention.
President Andrew Johnson had issued an amnesty proclamation shortly after
assuming the Presidency but Lee remained outside the pale of the amnesty
inasmuch as he fell within several of the fourteen classes of persons who were
excepted from Johnson's proclamation. However, the amnesty provided that such
persons as were in the excluded classes could seek Presidential clemency and it
was apparently with this thought in mind that Lee took the oath of allegiance.
Johnson issued several subsequent amnesties but Section three of the Fourteenth
Amendment to the Constitution continued to bar Lee from eligibility for State
or Federal office.
The Virginia Congressional delegation approached President Nixon with a
request that a Presidential pardon be issued to Lee. However, in 1898 when
President McKinley signed into law the legislation removing the disability
under Section three of the Fourteenth Amendment, the removal did not apply to
deceased individuals (Lee died in 1870).
Upon failure to secure a posthumous pardon for Lee from President Nixon,
Resolutions calling for restoration of the full rights of citizenship to Lee
were then presented in both the Senate and the House. The legislation was
passed unanimously in the Senate and by a vote of 407 to 10 in the House.
Votes against the measure were generally votes of protest at the seeming
reluctance of the House to issue a Congressional amnesty for Vietnam-era dissenters.
-19-
A House member voting against the Resolution stated his opposition was
"because it is morally wrong to restore the rights of one man who has been
dead for a century while we continue to denty these same rights to thousands
34
of young Americans now living.
Another opponent of the Lee legislation
said:
It is now proposed that we honor General Lee for following his
conscience. Should we do not the same for the thousands of
living Americans who followed their conscience (in opposing U.S.
involvement in Vietnam) and whose actions have been vindicated
35
by events?
President Ford signed the measure in a public ceremony at the Custis-Lee
Mansion with descendants of General lee in attendance.
-20-
Grant
President Ulysses S. Grant is generally overlooked in treatises on
Presidential amnesties, clemencies, and pardons for war-related offenses.
Yet Grant extended pardon to Union Army deserters and he also leniency toward
Confederate leaders. Grant's offer of pardon to deserters was extended by
War Department General Orders No. 102 issued 10 October 1873:
The President of the United States commands it to be made known
that all soldiers who have deserted their colors, and who shall
on or before the 1st day of January, 1874, surrender themselves
at any military station, shall receive a full pardon, only
forfeiting the pay and allowances due them at the time of desertion,
and shall be restored to duty without trial or punishment on condition
that they faithfully serve through the term of their the term of
their enlistment. 36
Grant also demonstrated a clement attitude toward Confederate leaders.
He lobbied for removal of the disability imposed on them by the Fourteenth
Amendment. Section 3 of the Amendment read:
"No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office,
civil or military, under the United States, or under any State,
who having previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State,
to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given
aid or comfort to the enemies thereof. But Congress may by a vote
of two-thirds of each House, remove such disability."
In his Third Annual Message to Congress (4 December 1871), Grant
reminded the Senators and Representatives that:
More than six years having elapsed since the last hostile gun was
fired between the armies then arrayed against each other
it
may
well be considered whether it is not now time that the disabilities
imposed by the fourteenth amendment should be removed.
37
-21-
Congress responded in the Spring of 1872 by removing the political
disabilities imposed by Section 3 of the Fourteenth Article of Amendment
from all persons "except Senators and Representatives of the Thirty-sixth
and Thirty-seventh Congresses and officers in the judicial, military, and
naval service of the United States, heads of Departments, and foreign
ministers of the United States". 38
Grant's opponent in the Presidential election of 1872 was Horace Greeley,
39
an advocate of unconditional amnesty for former Confederates.
Prior to
receiving the Democratic nomination for the Presidency, Greeley had been put
forth as the candidate of the Liberal Republicans. The Liberal Republican
party platform called for "immediate and absolute removal of all disabilities
imposed on account of the Rebellion believing that universal amnesty will
result in complete pacfication in all sections of the country. "
40
Grant's Fifth Annual Message to Congress contained a further plea for
clemency toward those who had provided leadership to the Confedenacy:
I renew my previous recommendation to Congress for general amnesty.
The number engaged in the lat rebellion yet laboring under disabilities
is very small, but enough to keep up a constant irritation. No
possible danger can accrue to the government by restoring them to
eligibility to hold office. 41
The Congress failed to favor Grant's request and it was not until June 1898
when President McKinley signed the final amnesty bill for Confederates.
-22-
NOTES
Appendix
Chapter III, Civil War
1. Richardson, James D., ed. Compilation of the Messages and Papers of the
Presidents, 1789-1897. Vol VI. Washington: GPO, 1907.
2. Dorris, Jonathan Truman. Pardon and Amnesty under Lincoln and Johnson.
Chapel Hill: The University of North Carolina Press, 1953.
3. Report of the Trial of the Hon. Clement L. Vallandigham by a Military
Commission. (See also The Limits of Dissent by Frank L. Klement, The
University Press of Kentucky: 1970.)
4. Congressional Globe, 35th, 36th, 37th Congresses carries Vallandigham's
anti-war, anti-conscription speeches.
5. Richardson
6. Ibid.
7. Dorris
8. Ibid.
9. Richardson
10. Ibid.
11. Basler, Roy P. ed. The Collected Works of Abraham Lincoln. Vol. VIII.
New Brunswick, N.J.: Rutgers University Press, 1953.
12 Richardson
13. The War of the Rebellion, Series III, Vol. V. Washington: GPO, 1907.
14. Milton, George Fort. The Age of Hate. New York: Coward-Mcann, Inc., 1930.
15. Ibid.
16. Richardson
17. Dorris
18. Richardson
19. Ibid.
20. Commager, Henry Steele, ed. Documents of American History, Eighth Edition.
New York: Meredith Corporation, 1968.
21. The Constitution of the United States of America, Analysis and
Interpretation. Washington: GPO, 1964.
22. Congressional Globe, 39th Congress, 2d Session, Part I.
23. Richardson
24. The War of the Rebellion, Series III, Vol. V. Washington: GPO, 1907.
25. Ibid.
26. Ibid.
27. Ibid.
28. The War of the Rebellion, Series I, Vol. 29, Part 2.
29. Ibid.
30. Ibid.
31. Ibid., Series I, Vol. 46, Part 2.
32. Ibid.
33. Ibid.
-23-
NOTES (Contd)
Appendix
Chapter III, Civil War
34. Scheuer, James H. (Rep. from NY). Quoted in Congressional Record,
Extension of Remarks, 22 July 1975, p. E39999.
35. Abzug, Bella (Rep. from NY). Quoted in Congressional Record, 22 July 1975,
p. H7191.
36. Richardson, Vol. VII.
37. Ibid.
38. Ibid.
39. Van Doren, Charles and McHenry, Reobert, eds. Webster's Guide to
American History. Springfield, Mass: G & C Merriam Company, 1971.
40. Commager
41. Richardson
APPENDIX
THE HISTORICAL PERSPECTIVE OF CLEMENCY
CHAPTER IV. Twentieth Century Amnesties
A. T. Roosevelt
B. Coolidge
C. Franklin D. Roosevelt
D. Truman
1. 1945 Proclamation
2. Amnesty Board
3. 1952 Proclamations
TWENTIETH CENTURY AMNESTIES
T. Roosevelt
President Theodore Roosevelt issued a proclamation of general
amnesty and pardon 4 July 1902 that was unique in many respects.
It dealt with the inhabitants of
the Philippine Archipelago, a territory ceded to the United
1
States at the close of the Spanish-American War.
Emilio Aguinaldo, a Filipino leader who had fought Spanish
rule, urged his fellow Islanders to side with the Americans
in the course of the Spanish-American War. Proclaiming himself
head of a revolutionary government, Aguinaldo wrested control
of the Philippines, except for Manila, from the Spanish.
Following Dewey's successes and the American occupation of
Manila, the Philippine Insurgents turned to resisting the
Americans.
Quelling the Philippine Insurrection proved a formidable
task; US forces committed to the Islands eventually reached a
high of 70,000. But by 23 November 1899, General Arthur
MacArthur was able to say
The so-called Filipino Republic is
destroyed. The congress is dissolved.
The President (Aguinaldo) of the so- so-
2
called republic is a fugitive
MacArthur queried his superiors " how would it do to issue
a proclamation at an early date, offering complete amnesty to
all who surrender within a stated time " His suggestion, if
adopted, might have precluded the next phase of the Insurrection,
a turn from organized resistance
-2-
MacArthur became military governor of the Islands in May 1900
and on 21 June he offered amnesty to those who would renounce
3
Filipino aspiration for nationality and accept American sovereignty.
To take advantage of the offer, individuals were required to
surrender within 90 days and take an oath of allegiance. Approx-
imately 5,000 accepted MacArthur's offer.
The guerrilla phase of the Insurrection tied down a high
percentage of the US Army until Aguinaldo was finally captured
in March 1901. Aguinaldo took the oath of allegiance on 2 April
and on the 19th of the same month he urged his compatriots to
accept American rule. 4 His appeal to Filipinos to accept
American sovereignty brought the surrender of 1,500 Insurgents
5
in the first five days and by September over 4,000 had surrendered.
One Insurgent who did not surrender was Manuel L. Quezon, who
was later captured and imprisoned for six months. Quezon's
determination to see the Philippine s gain indpendence never
waned. and years later he became the first President of the
Philippine Commonwealth.
In a most extraordinary action, Roosevelt's 4 July 1902
Proclamation covered acts committed during a period (August
1896 - December 1898) when the Filipinos were under the domination
of the Kingdom of Spain. In addition to granting amnesty for
acts committed during the Insurrection against Spain, Roosevelt
-3-
also amnestied Filipinos for insurrectionary acts committed after
the American occupation.
Roosevelt's Proclamation was neither universal nor unconditional.
Excluded from the proclamation were crimes committed subsequent to
May 1902 in islands then under civil government. No amnesty was
granted to persons previously convicted of murder, rape, arson or
robbery. However, persons in exempted classes could make special
application for clemency.
To benefit from the amnesty and pardon, individuals were required
to take an oath acknowledging the "supreme authority of the United
States of America in the Philippine Islands".
-4-
President Coolidge
On 15. December 1923 President Coolidge pardoned all Federal prisoners
who had been convicted under the Espionage Act of opposing the government
and the Selective Service during World War One. The pardons were rooted
in recommendations submitted to the President by a committee appointed by
President Harding before his death in August 1923. The committee, composed
of ex-Secretary of War Baker, Bishop Brent, and General Harbord, was formed
after President Harding had been subjected to political pressure to release
the prisoners. According to contemporary newspaper accounts, General
Harbord was opposed to the Presidential pardoning.
Eight of those pardoned by Coolidge had refused an earlier offer of pardon
by President Harding a year earlier because of the conditional nature of
IN
the pardon offered. At Christmas-time 1921, Harding had commuted the term
of Socialist Eugene Debs after Debs had served less than three years of a
ten year sentence imposed for violating the Sedition Act of 1918. Debs, a
perennial presidential candidate, had garnered nearly a million votes in
the 1920 election even though then imprisoned.
The Coolidge decision, which affected only 31 prisoners, was announced
6
after Presidential consultation with the Attorney General.
Senators Pepper
and Borah and the American Civil Liberties Union had led the pro-amnesty
faction in this battle. 7 Unaffected by Coolidge's decision was N. S. Sogg,
a Mexican serving a ten year prison sentence for having aided an American
to escapie the World War One draft.
-5-
Franklin D. Roosevelt
In a 23 December 1933 Proclamation affecting only those
completed
who had
prison terms for violating the Draft or
Expionage Acts, President Franklin D. Roosevelt restored
civil rights to about 1,500 war-resisters. 8 There was no
commutation of prison sentence as all affected by Roosevelt's
"Christmas Amnesty Proclamation" had already completed their
sentence. In discussing the intent and effect of his
Proclamation, Roosevelt noted that "fifteen years have
elapsed since the end of the war" and the individuals affected
by the Proclamation "have paid the penalty that the law imposed
on them".
Roosevelt's Proclamation provided no relief for those who
had fled the country to avoid prosecution. The Proclamation
had an unusual effect on the family of Mrs. Emma C. Bergdoll
of Pennsylvania. Restoration of citizenship was provided for
her son Erwin, who served a four year prison sentence for
draft evasion. However, another son, Grover, remained un-
amnestied since he had fled from the United States to avoid
the draft.
-6-
President Truman
Between 1945 and 1952, President Truman issued four Proclamations
granting Executive clemency to certain classes of individuals. One
of the Proclamations dealt with WW II Selective Service violators,
another dealt with peace-time deserters; Truman's other two
Proclamations restored civil rights to war supporters, not war
resisters.
1945 Proclamation
Truman's 1945 Christmas Eve Proclamation benefited several
thousand former convicts. Truman acted on the recommendation of
his Attorney General with Madison's pardoning of LaFitte's pirates
was cited as a precedent.
The White House
pointed out
The men who will obtain the benefits of
the proclamation are men who are now at
liberty and whose honorable record in the
armed services would seem to demonstrate
their fitness to be restored to a respected
9
place in society.
The Presidential Proclamation restored citizenship rights to
ex-convicts who had served at least one year in the military
after 28 July 1941 and were subsequently awarded honorable dis-
charges. Included in this amnesty were over 2,000 Federal prisoners
who had been paroled for induction into the Army during World War II.
In the statement accompanying the Proclamation, the White House
said the clemency was "for the benefit of those ex-prisoners
whose meritorious service in the Armed Forces has earned them a
Presidential pardon for the offenses of which they were previously
convicted". Thus. Truman's use of Presidential of Evecutive
-7-
time of war. Truman stipulated that persons who had violated
the laws for the government of the Army and Navy were not eligible
for pardon. Conscientious objectors and persons standing convicted
of violating the Selective Service laws were excluded from the
benefits of the 1945. Proclamation.
Amnesty Board
An Amnesty Board was created by Truman by Executive Order No. 91814 on
23 December 1946. The Board was tasked to review the convictions of persons
sentenced for violations of the Selective Service Act, and to report to the
Attorney General whether Executive clemency should be granted or denied.
After hearing arguments from pro-amnesty factions and anti-amnesty
factions, the Board determined thaat there should be no grant of clemency
to classes of offenders but that a case-by-case review should be conducted
and individual pardon recommended where appropriate. There was no admission
that resisters were right and the government was wrong.
Of the 15,805 violators whose cases were brought to the attention of the
Board, about 1,200 were in prison in January 1946 when the Board began its
work. In December 1946 when the Board submitted its report there were 626
in custody; 550 of that number had been committed subsequent to the creation
of the Board.
The Amnesty Board offered individual pardon to religious conscientious
objectors, to evaders who subsequently served honorably in the military,
10
to Japanese Nisei, and to persons whose violations were due to ignorance.
-8-
The Nisei were American citizens of Japanese ancestry who had been removed
from their homes along the coast and placed in war relocation centers
upon the outbreak of hostilities. The Board found that "Prior to their
removal from their homes, they had been law-abiding and loyal citizens
(who) deeply resented classification as undesirables."
Probably the most controversial action of the Board was its denial of
blanket religious conscientious objector status to Jehovah's Witnesses.
The Board declined to recommend clemency for those who witnessed only in
their "spare or non-working time".
In refusing to recommend clemency for persons having a prior criminal
record of one or more serious offenses, the Board noted "The Board would
have failed in its duty to society and to the memory of the men who
fought and died to protect it, had amnesty been recommended in these
cases." The Board recommended Executive clemency for 1,523 individuals.
Truman accepted the Board recommendations and granted a pardon to each
of the 1,523 on 23 December 1947. Approximately 1,518 others either had
received or would become eligible for pardon by virtue of their qualification
under Truman's December 1945 amnesty. The 15,805 convictions under the
Selective Service Act that were considered by the Board were categorized
as follows:
Willful Violators (Non-
conscientious Objectors)
approximately 10,000
Jehovah's Witnesses
approximately 4,300
Conscientious Objectors
approximately 1,000
Other Types of Violators
approximately
500
-9-
Of the 15,805, there were 3,041 potential recipients of Executive
clemency:
Recommended by the Amnesty Board
1,523
Previously pardoned Dec 1945
Proclamation)
approximately
618
Entered Armed Forces and may
receive pardon
approximately
900
A partial remission of prison sentences was involved in only
three cases; the remaining 1,520 pardoned had already completed
¥1
their terms.
The paucity of pardons recommended by the Amnesty
Board was favorably commented on in a New York Times editorial:
It stated a principle that is fundamental
in a democracy, where the majority rules
with due regard for the rights of a minority,
when it decided that it would not recommend
restoration of civil rights to those persons
who "thus have set themselves up as wiser
and more competent than society to determine
their duty to come to the defense of the
nation. " 12
Not all were in agreement with the Times. On the same day the editorial
appeared (Christmas Day, 1947) pickets wearing convict costumes marched
around the White House protesting the limited amnesty and clamoring for
12
amnesty for all conscientious objectors.
400 citizens of Wichita, Kansas petitioned President Truman to grant
a general amnesty in 1947. They called President Truman's attention to
a statement he had made in a 1946 address to a Conference of the Federal
Council of Churches: "Now that we have preserved our freedom of conscience
14
and religion, let us make full use of that freedom."
The petitioners
-10-
urged Truman to put his words into action by releasing some 300 persons still
imprisoned as a result of court-martial or for having been convicted of
violating the Selective Service Laws. In requesting an amnesty be granted,
the petitioners pointed out:
A general amnesty for violators of the Selective
Training and Service Act of 1940 and war objectors
court-martialed by the armed forces is the only
possible way to free the men for whom we are
concerned and to restore full civil rights to them
and to the thousands already released. Continued
punishment of these men violates our tradition
of freedom of conscience and 15 endangers the civil
liberties of all citizens.
Senator Capper presented the petition to the United States Senate and it
was referred to the Armed Services Committee. However, the clemency issue
was not acted on again until 1952.
1952 Proclamations
Two of President Truman's proclamations of pardon and amnesty were
issued in the midst of the Korean War. They were reported to have been
16
proposed by the Defense Department.
On 24 December 1952 as he began
to prepare to vacate the White House and return to private life, President
Truman restored civil rights to all persons convicted of having deserted
between 15 August 1945 and 25 June 1950. No pardon, remission, or
mitigation of sentence was involved; the sole effect of Truman's action
17
was to restore citizenship to an estimated 8,940 peace-time deserters.
Truman's 1952 Christmas Message also contained the announcement of his
decision to restore civil rights to Korean War veterans who had been
convicted in civil courts prior to their military service. The Truman
Proclamation on behalf of ex-convicts is seen to be related to the
McCarran Immigration Act which became effective on the day the Proclamation
-11-
was issued. Without this restoration of citizenship, naturalized veterans
having criminal records might have been deported. In wartime, no President
could permit the deportations of soldiers who had fought in the war.
There were no further Executive clemencies for war-related offenses
until President Ford's Proclamation of September 1974.
-12-
NOTES
Appendix
Chapter IV Twentieth Century Amnesties
1. Principal source documents in addition to Sexton were Philippine
Campaigns by Uldarico S. Baclagon (Manila: Graphic House, 1952)
and American umperialism and the Philippine Insurrection (Henry
F. Graff, ed., Boston: Little, Brown and Company, 1969).
2. Sexton, William T. Coldiers In The Sun. Harrisburgh, Pa: The
Military Service Publishing Company, 1939.
3. Congressional Record, 56th Congress, 2d Session.
4. Morison, Samuel Eliot. The Oxford History of the American People.
New York: Oxford University Press, 1965.
5. Sexton
6. "Coolidge Releases All War Offenders as Christmas Gift", New York Times,
16 December 1923.
7. Preston, William Jr. Aliens and Dissenters. Cambridge, Mass: Harvard
University Press, 1963.
8. "Roosevelt Proclamation Restores to Citizenship 1,500 Wartime Violators",
New York Times, 25 December 1933.
9.
"Truman Pardons Ex-Convicts Who Served with Merit in War", New York
Times, 25 December 1945.
10. Leviero, Anthony. "President Grants Pardons to 1,523 Who Escape
Draft," New York Times, 24 December 1947.
11. Ibid.
12. "The Duties of Citizenship," New York Times, 25 December 1947.
13. Newsweek, 5 January 1948.
14. Public Papers of the Presidents, Harry S. Truman, 1946 (Wash: GPO, 1962).
15. Congressional Record, Vol. 93, Part 1, 80th Congress, 1st Session.
16. "Truman Yule Plea", New York Times, 25 December 1947.
17. Ibid.
ebcl/23Aug
The Australian Clemency Program
Because the issues of Vietnam and conscription affected Australia
much like they did the United States, it is appropriate to consider
the steps taken by the Australian government to "bind the nation's
wounds" following disengagement of their military forces from Vietnam.
Australias release of jailed draft resisters, cancellation of in-
dictments against National Service Act Violators, and the refusal
to prosecute AWOL servicemen constituted acts of clemency similar
to the actions taken by President Ford in 1974. Prime Minister Gough
Whitlam's clemency program helped to promote reconciliation amongst
a people who, like our hown, had been deeply divided over the issues
of Vietnam and conscription.
In 1964, conscription for unrestricted overseas service was
adopted for the first time in Australian history. Its lottery system
permitted 20-year-old voteless youths to be involuntarily inducted
and assigned to military expeditionary forces. Full time service
could be avoided by enlistment in the Citizens Military Force. Not
long after the renewal of conscription, troop commitments were made
to Vietnam. By 1968, nearly half of the Australian soldiers serving
in Vietnam were draftees. Approximately 100,000 Australian males
attain-d age 20 each year and from this group about 10,000 were
selected annually by lottery for call-up.
Protests against Vietnam and conscription were of a nature entirely
familiar in the United States: street demonstrations, peace vigils,
draft card burnings, "selective" conscientious objection--the whole
gamut of protest against war and involuntary military service. In the
midst of all this, Australian fought side by side with our troops in
Vietnam, acquitting themselves with valor and distinction. The
Australian troop commitment to Vietnam reached a high of 8,000 men;
as a proportion of national population this was the equivalent of
our sending 100,000 troops to Vietnam. It constituted the largest
Australian force dispatched overseas since World War II.
As public support shifted away from Australia's military role in
Vietnam, dissatisfaction with conscription became more pronounced.
Vietnam and conscription became dominant political issues, spurred
by a lowering of the voting age from 21 to 18. The Australian Labor
(ALP)
Party/pledged withdrawal from Vietnam and stated that conscripts would
be brought home immediately should its party come into power. This
when
position was subsequently modified the ALP came out in favor of
conscription for overseas service, but only in time of declared war.
National elections on 5 December 1972 put the Australian Labor
Party in power for the first time in twenty-three years. Vietnam and
especially conscription had been contentious issues in the 1972
election and weighed heavily on many a voter's mind as he cast his
ballot.
When Labor leader Gough Whitlam became Prime Minister on 8 December
1972, he acted immediately to end induction and grant unconditional
clemency to draft resisters and deserters. Thoughout the Australian
draft, over 2% of all eligible men failed to register as required by
law. However, by late 1972 no one had yet been convicted of that
offense. And only 185 faced charges of failing to register. Six
persons had been convicted of failing to report for induction, each
receiving an eighteen month prison term. An additional 69 faced
similar charges.
Prime Minister Whitlam, upon assuming office, inmediately announced:
1. The cancellation of the previously announced call-up of 2,200
for involuntary military service.
2. The cancellation of National Service medical examinations.
3. The suspension of any further call-ups for involuntary service.
4. The revocation of all prior approvals for prosecution of
offenses against the National Service Act.
5. The release of draft resisters who had been jailed for refusal
to submit to military service.
6. A guarantee that conscripts who were AWOL would receive ad-
ministrative discharges in absentia with no loss of civil rights.
Whitlam also decreed that draftees not desiring to complete their
national service were free to leave the military. Conscripts choosing
to shed their uniforms were placed on leave pending discharge in absentia.
In addition, those individuals who were serving in the Citizens Military
Force as an alternative to full time National Service were offered the
opportunity to resign.
At the time of the decree, Australian Army strength sttod at 41,517,
of which 11,843 were of the National Service. As a result of the
opportunity to resign from the Army, the number of National Service
personnel declined by 76% to 2,798 by the end of March 1973, lowering
the total active duty Army strength to 33,501. Special compensation
was offered as an indicement to draftees to stay in the Army, and
their tours of service were reduced from 24 to 18 months.
Within ten days of assuming office, Whitlam also ordered the last
Australian troops withdrawn from Vietnam.
The principlal source documents for this monograph are
Books:
Alexander, Fred. Australia Since Federation. Melbourne: Thomas Nelson (Australia) Limited,
1967.
Albinski, Henry S. Politics and Foreign Policy in Australia. Durham, NC: Duke University
Press, 1970.
Firkins, Peter. The Austaalians in Nine Wars. Adelaide: Rigby Limited, 1971.
Millar, Thomas Bruce. Australia's Defence. Melbourne: Melbourne University Press, 1989.
Newspapers & Periodicals:
Official Transcripts of Parliamentary Proceedings (1972-73)
Australian Outlook
Australian Army Journal
AMEX
New York Times
This monograph was reviewed by the Australian Defence Attache to the US and his
prink principal comments incorporated therein.
Appendix C
APPENDIX
:
DATA ON PCB APPLICANT
Data
In order to collect adequate data on the PCB applicants, a sample was
constructed of 1481 cases reviewed and disposed of by the Board. The selection
process was not completely andom, however, since the number of civilians and
the types of military discharges were known from a complete survey. Approximately
11.5% of all PCB applicants were civilians and 88.5% were former military
personnel. Of the military personnel, 55.9% were discharged as undesirable
(UD) (49.5% of all applicants); 42.1% were discharged for bad conduct (BCD)
(37.3% of all applicants); and 1.9 were discharged under the dishonorable
classification (DD) (1.7% of all PCB applicants .) The sample consisted of
472 civilians cases and 1009 military cases - thus allowing an adequate sample
of civilian and making our military data more reliable. However, the military
cases could not be accurately controlled to fit the known discharge percentiles
since only cases which had been disposed could be used and since random
selectivity of the smaller, disposed universe varied in accordance with early
applications.
The data was prepared for analysis in the Statistical Package for the
Social Sciences program. Because the data collection was performed by a group
of people whose specialities were legal and not demographic, we had an error
rate of 3.2%
We had to reply on case summaries for our data. While we could rely on
them as accurate reflections of the case files (given our Quality control
procedures) this did raise three methodological problems:
(1) Official
records's were not always prepared in the same manner, (2) Much of the Da a did
not come directly from the applicant, but from a third party. (3) the information
included in case summaries was not included for the purpose of statistical
analysis, but simply had to be relevant to the Board's Baseline formula
and Factors.
Of course, relying on case summaries did have one advantage: Our statistics
reflect our Board members views of our applicants. Usually, the case summary
was the sole basis for a Board member's knowledge of an applicant.
In the remainder of this appendix, we list the findings of our survey.
"N" and Value Representations Table
Civilian
Military
Type of Application
N
472
1009
Civilian
100%
--
Army
:
62.3%
Navy
--
11.6%
Marine Corps
--
23.0%
Air Force
--
3.0%
Type of Discharge
N
-0-
1009
Undesirable in Lieu of Court Martial
--
44.9%
(
Undesirable for Unfitness
--
15.6%
Undesirable by Court Martial
:
.2%
Total Undesirable Discharges
--
60.7%
Bad Conduct Discharge
:
37.6%
Dishonorable Discharge
--
1.8%
Year of Birth
N
469
1005
1934 to 1939
:
1.5%
1940 to 1944
4.9%
6.6%
1945 to 1949
55.8%
47.0%
1950 to 1954
38.9%
41.0%
1955 - 1956
:
1.2%
Race
N
394
993
White
87.1%
74.5%
Black
10.7%
20.5%
Spanish Surname
1.3%
3.5%
American Indian
--
0.7%
Oriental
0.8%
--
Other
0.3%
0.3%
Childhood
N
397
764
With Both Parents
69.0%
52.0%
With One Parent due to Death
8.8%
10.7%
With One Parent due to Divorce
10.1%
10.2%
With One Parent due to Desertion
2.3%
5.2%
Parent Never Married
0.3%
1.0%
With One Step-Parent
6.0%
10.7%
With Other Relatives
3.3%
4.3%
With Non-Relatives
1.3%
3.1%
Civilian
Military
Childhood Residence
N
189
328
Urban
58.2%
47.3%
Suburban
10.5%
12.2%
Rural non-farm (small town)
17.5%
32.0%
Rural farm
5.8%
8.2%
Regions of Childhood
N
399
789
1 1st Circuit: Maine, New Hampshire,
Massachusetts, Puerto Rico, Rhode
Island
3.3%
4.0%
2 2nd Circuit: Vermont, Connecticut,
New York
6.3%
9.0%
3 3rd Circuit: Pennsylvania, New
Jersey, Delaware, Virgin Islands
9.5%
9.2%
4 4th Circuit: Virginia, West
Virginia, Maryland, North Carolina,
South Carolina
7.0%
11.6%
5 5th Circuit: Georgia, Florida,
Alabama, Mississippi, Louisiana,
Texas, Canal Zone
10.8%
17.9%
6 6th Circuit: Michigan, Ohio,
Kentucky, Tennessee
11.3%
13.6%
7 7th Circuit: Illinois, Indiana,
Wisconsin
8.8%
7.1%
8 8th Circuit: Arkansas, Missouri,
Iowa, Minnesota, North Dakota,
South Dakota, Nebraska
6.3%
8.6%
9 9th Circuit: California, Montana,
Idaho, Washington, Oregon, Nevada,
Alaska, Hawaii
25.1%
8.7%
10 10th Circuit: Wyoming, Utah,
Colorado, Kansas, Oklahoma,
New Mexico
5.0%
4.9%
11 11th Circuit: District of Columbia
.3%
1.1%
12 Outside U.S. and Territories
1.3%
2.1%
13 More than one inter-circuit moves
before age 18
4.5%
1.5%
Evidence of Family Instability: Most
Severe
N
114
326
1 Evidence of child abuse
.9
3.4%
2 Evidence of drug abuse
.9
.3%
3 Evidence of alcoholism
12.3
9.5%
4 Multiple marriages
12.3
16.9%
5 Serious family illness
5.3
11.0
6 Serious family mental illness
5.3
3.1
7 Parenta1 promiscuity
2.6
2.8
8 Lack of harmony
40.4
35.9
9 Other
20.2
17.2
Evidence of Family Instability: Secondary
Civilian
Military
N
52
124
1 Evidence of child abuse
3.8%
7.0%
2 Evidence of drug abuse
2.3%
3 Evidence of alcoholism
13.5
7.0%
4 Multiple marriages
11.5
7.0%
5 Serious family illness
3.8
14.0
6. Serious family mental illness
11.5
4.7
7 Parental promiscuity
1.9
0.8
8 Lack of family harmory
25.0
35.7
9 Other
28.8
21.7
Evidence of economic instability
N
130
245
1 Low income
23.1%
33.1%
2 Itinerent residence patterns
5.4%
6.1%
3 Intermittent employment
1.5%
2.0%
4, Low income and intermittent employment
1.5%
5.3%
5 Low income and itinerent residence pattern
1.5%
8%
6 Itinerent residence pattern and intermittent
1.5%
1.2%
employment
7 All elements noted (itinerancy, intermittant,
.8%
.8%
employ, low income)
8 Other evidence of economo-instability
6.9%
25.3%
9 Evidence of economic stability
57.7%
25.3%
Number of Siblings
N
428
897
None
10.6%
13.1%
One
15.9%
11.1%
Two
22.0%
15.8%
Three
21.7%
16.4%
Four
11.4%
13.0%
Five
6.5%
12.9%
Six or More
12.2%
17.1%
Highest Degree Earned
Civilian
Military
N
435
941
Grade School Graduate
20.9%
62.2%
High School Graduate
56.8%
23.9%
GED Received
2.1%
3.6%
GED Received in Service
I
9.0%
GED Received in Prison
.2%
.6%
Post High School Vocational Training
1.6%
.2%
Bachelors Degree
14.3%
.2%
Advanced Degree (MA, MS, Phd)
3.9%
.1%
Professional Degree (J.D. M.D.)
I
.1%
AFQT. Group (CM)
N
N/A
912
Group I
-
2.1%
" "
II
I
15.8%
" "
III
I
49.4%
" "
IV
I
31.4%
" "
V
I
.5%
Religion
N
191
9
CO-Jehovah's Witness
49.7%
-
CO-Quaker
.5%
-
CO-Mennonite
I
-
CO-Muslim
3.1%
(2)
CO-Bretheren
I
-
CO-Other
12.0%
(2)
Non-CO-Conventional (Prot,/Cath/Jews)
21.5%
(4)
Non-CO Uncoventional (Hare-Kreshane, etc)
3.7%
-
Personal Meral Code
9.4%
(1)
CO Application
N
211
11
Some Initiative Taken - No Application
24.2%
(4)
Application Made - No Action Taken
7.1%
-
Application Made - CO Draft Statue Awards
21.3%
-
Application Made Before Ordered to Report,
Denied
24.6%
(2)
Application Made After Ordered to Report,
Denied as Untimely
13.7%
-
Civilian
Military
6 Application made after ordered to report-
denied on the merits
6.6
I
7 Application made in service, accepted and
assigned to non-combat duties
1.4
I
8 Application made in service, denied
-
(5)
Basis of CO decision
N
137
6
1 Pre-Welsh-approved religion
21.2%
I
2 Pre-Welsh-denied moral or ethical
6.6%
(2)
3 Pre-Welsh-denied-selective objector
2.9%
I
4 Pre-Welsh-denied-other
16.1%
(1)
5 Post-Welsh-approved-religious
13.9%
I
6 Post-Welsh-approved-moral or ethical
5.8%
I
7 Post-Welsh-denied-moral or ethical
11.7%
I
8 Post-Welsh-denied-selective objector
5.1%
(1)
9 Post-Welsh-denied-other
16.8%
(2)
(Note: United States V. Welsh decided on June 15, 1970)
Civilian Convictions for non-qualifying offenses
N
472
1009
0 No evidence of conviction noted
96.0%
88.2%
1 Non-violent felony
3.4%
6.3%
2 Violent felony
.2%
3.1%
3 Non-violent and violent felonies
.2%
1.2%
4 Multiple violent felonies
.2%
.6%
Military Convictions for Non-Qualifying Offenses (Highest applicable)
(Highest applicable)
N/A
1009
0 No evidence of convictions noted
-
42.4%
1 NJP (s) for offense (s) particularly military
in nature
-
16.7%
2 SCM (s) for offense (s) particularly military
in nature
-
6.7%
3 SPCM (s) for offense (s) particularly military
in nature
-
29.3%
4 GCM (s) for offense (s) particularly military
in nature
I
.6%
5 NJP (s) for offense (s) not particularly
military in nature
I
.5%
6 SCM (s) for offense (s) not particularly
military in nature
I
.6%
7 SPCM (s) for offense (s) not particularly
military in nature
-
1.6%
8 GCM (s) for offense (s) not particularly
military in nature
I
.2%
9 UD - unfitness with no punished offenses
-
1.3%
Non-Qualifying Offense Specifications or Charges
Civilian
Military
At Time Of Discharge
N
N/A
1009
No evidence of other specifications or
charges
I
86.1%
Other pending charges for peculiarly military
-
offenses
2.4%
All other pending charges
I
.8%
Record of an NJP or SCM for peculiarly military
offenses (in UD-unfitness cases only).
I
2.2%
Record of any other NJP or SCM (in UD-unfitness
cases only).
I
1.3%
Court-martial conviction for a specification of
a peculiarly military offense.
-
6.9%
Court-martial conviction for any other specification
of a non-qualifying offense
I
.3%
Most Severe Sentence Type for Non-Qualifying Offenses
N
18
341
Incarceration for more than one year
(7)
15.0%
Incarceration for less than one year and probation:
total over one year
(1)
2.6%
Incarceration for less than one year
(1)
70.4%
Probation for more than one year
(7)
1.5%
Probation for less than one year
(2)
10.3%
Time Sequence of Non-Qualifying Offenses
N
18
534
All prior to first qualifying offense
(7)
68.0%
All prior to last qualifying offense
(3)
16.7%
All between first and last qualifying offenses
-
1.5%
A11 after first qualifying offense
(2)
.7%
All after last qualifying offense
(4)
3.7%
A11 before first and after last qualifying offense
(2)
4.3%
Before, between and after qualifying offenses
I
5.1%
Year of First Qualifying Offense
Civilian
Military
N
126
631
1964
-
3.0%
1965
.8%
4.3%
1966
1.6%
5.9%
1967
3.1%
7.1%
1968
2.3%
11.9%
1969
19.5%
16.2%
1970
21.9%
17.9%
1971
22.7%
16.5%
1972
19.5%
12.5%
1973
6.3%
3.0%
1974
.8%
-
Year of Last . Qualifying Offense
N
455
995
1963
.2%
-
1964
-
.8%
1965
1.1%
2.2%
1966
1.8%
3.5%
1967
1.3%
6.9%
1968
5.5%
7.5%
1969
12.7%
15.0%
1970
24.3%
16.8%
1971
27.9%
19.2%
1972
17.5%
16.0%
1973
5.9%
9.1%
1974
1.3%
2.1%
Most Severe Sentence Type for Qualifying Offense
Civilian
Military
N
441
455
Incarceration
37.0%
97.4%
Probation - Alternative Service
44.8%
.2%
Probation - Fines or Forfeitures
4.1%
.7%
Probation Only
6.2%
.7%
Incarceration Suspended in Lieu
Of Probation
7.5%
1.0%
Appeals Of Conviction
N
472
1009
None
93.2%
77.6%
Federal Court Appeals
6.8%
.27%
Courts-Martial Appeal
-
Appeal of Discharge
-
.8%
Type of Civilian Qualifying Offense
N
464
N/A
Failure to Register
2.6%
-
Failure to Inform of Charge
9.7%
-
Failure to Report for Physical
3.7%
-
Failure to Report for Induction
32.1%
-
Failure to Submit for Induction
31.7%
-
Failure to Perform A/S
13.4%
I
Combination Including Induction
6.5%
-
Combination Not Including Induction
.4%
-
Circuit of Conviction
Civilian
Military
N
45%
N/A
1st Circuit
2.6%
-
2nd Circuit
5.9%
-
3rd Circuit
8.9%
-
4th Circuit
7.0%
-
5th Circuit
11.8%
-
6th Circuit
12.9%
-
7th Circuit
7.6%
-
8th Circuit
6.5%
-
9th Circuit
30.9%
-
10th Circuit
5.9%
-
11th Circuit
--
-
Age at Enlistment or Induction
N
N/A
1006
15
-
.1%
16
-
.5%
17
-
30.8%
18
-
25.7%
19
-
21.2%
20
-
12.1%
21
-
4.1%
22
I
1.9%
23
-
1.3%
24 or older
-
2.4%
Military Intake
Civilian
Military
N
N/A
Drafted
-
15.6%
Enlisted for 2 years
-
11.1%
Enlisted for 3 or more years
-
46.0%
Reenlisted
-
7.2%
Judicially Induced Enlistment
-
.4%
Enlistment Length Unknown
-
19.7%
Hardship Reassignment Requested
N
N/A
100 %
Temporary deferral from active duty, granted
-
.2%
Temporary deferral from active duty, denied
-
.1%
Compassionate leave, granted
-
..7%
Compassionate leave, denied
-
1.4%
Compassionate reassignment, granted
-
.6%
Compassionate reassignment, denied
-
1.6%
Hardship discharge, denied
-
5.6%
None noted
-
89.8%
Vietnam Experience
N
N/A
100%
Volunteer, partial tour ending in injury
.5%
Volunteer, partial tour ending in AWOL
1.1%
Volunteer, partial tour ending other reasons
1.1%
Voluntary full tour
6.3%
Non-volunteer, partial tour ending in injury
1.0%
Non-volunteer, partial tour ending for other
1.3%
Non-volunteer, partial tour ending for other
reasons
2.3%
Non-volunteer, full tour
10.0%
More than one tour
3.0%
No tours
73.4%
Civilian
Military
Nature of Vietnam Service
N
N/A
219
Saigon
Country, non-combat
-
.5%
Country, combat, one campaign
-
18.3%
Country; combat, two campaigns
-
18.3%
Country, combat, three pr more
campaigns
-
9.6%
Country, combat, no record of
campaigns
-
26.5%
26.9%
Decorations for Valor (Highest Awards
Listed Increasing Order) N
N/A
72
Vietnam Cross of Gallantry w/Palm
and Frame
36.1%
(Service) Commendation Medal w/"V"
device
23.6%
Air Medal w/"V" device
8.3%
Bronze Star w/"V" device
30.6%
Silver Star
1.4%
Type of Military Qualifying Offense
N
N/A
990
AWOL
-
89.9%
Desertion
-
2.7%
Missing Movement
-
.2%
AWOL and Desertion
-
6.2%
AWOL and Missing Movement
-
.7%
Desertion and Missing Movement
-
.3%
Number of Unpunished AWOLs, etc.
N/A
Mean = 1.6
Number of NJPs for AWOL, etc.
N/A
Mean = 1.9
Number of SCMs for AWOL, etc.
N/A
Mean = 1.2
Number of SPCMs for AWOL, etc.
N/A
Mean = 1. 4
Number of GCMs for AWOL, etc.
N/A
Mean = 1.008
Civilian
Military
Circumstances of Last/Discharge Military
Offense
N/A
N
-
823
Left from Basic Training
-
6.9%
Left from advanced infantry training
-
10.1%
Left from stateside duty, not after
Vietnam Service
-
51.9%
Left from stateside duty, after Vietnam
Service
-
24.1%
Failed to return to Vietnam from R&R
or other leave
-
1.3%
Left from non-combat area of Vietnam
-
2.2%
Left from combat area of Vietnam
-
1.2%
Left from actual combat
-
2.3%
Criminal Intake of Last Qualifying Offense
N
230
700
Surrendered
71.3%
700
52.2%
Apprehended
28.7%
52.2% 47,8%
Civilian
Military
Place While AWOL or Otherwise at Large
N
181
397
Immediate return to authorities
6.6%
2.5%
Hometown, not in hiding
63.0%
73.0%
Elsewhere in US, with family
2.2%
8.1%
Elsewhere in US, not with family, not in hiding
14.4%
5.3%
Elsewhere in US, in hiding (e.g., under assmued name)
2.2%
1.0%
In Canada
6.6%
2.0%
In the foreign country of military assignment
-
6.0%
In another foreign country
5.0%
2.0%
Activities While AWOL or otherwise at Large
N
112
284
Employed, full-time, white collar
23.2%
2.3%
Employed, full-time, skilled blue collar
20.5%
32.1%
Employed, full-time, unskilled
24.1%
47.0%
Employed, part-time, white collar
I
Employed, part-time, skilled blue collar
1.8%
.9%
Employed, part-time, unskilled
7.1%
3.7%
Employed intermittently
14.3%
5.1%
Unemployed
7.1%
7.9%
Other
1.8%
.9%
Secondary Reasons for Offense
N
Civilian
Military
204
649
Religious objection to all war
6.9
.3%
Ethical or moral objection to all war (non-
religious).
18.1
.8
Specific political moral or ethical objection
to the war in Vietnam (not religious)
14.2
1.1
Avoid going to Vietnam
2.5
1.2
Avoid going to overseas replacement station,
not in Vietnam and not known to be Europe
-
.2
Went AWOL from Vietnam
-
.5
Failed to return to Vietnam from leave or R&R
-
.3
Post combat psycological problems complained of.
-
1.1
Did not like service
1.0
6.2
Other, articulated or unarticulated opposition to
war
5.4
.3
Hindrance of CO application or failure to provide
proper assistance
2.9
.3
Denial of CO application
3.2
.3
Hindrance of request for hardship discharge or
compassionate reassignment.
-
2.0
Denial of hardship discharge or compassionate
reassignment.
-
1.2
Improper recruitment into armed forces--enlistment
in lieu of sentence by criminal authorities.
-
.2
AFQT Category IV.--Project 100,000
-
4.0
Breach of assignment preference or occupational
choice.
.6
2.0
Denial of request for leave.
.5
1.7
Improper orders: Told to go home and wait orders;
lost soldier.
-
.3
Other Procedural Unfairness
4.4
6.6
Drug or alcohol problems/dependence
1.6
2.3
Personal medical problem;
1.5
5.2
Personal, emotional or psychological problem
3.9
8.9
Marital problem
1.0
3.7
Family Medical problem
2.5
8.3
Family emotional or psychological problem
.5
5.2
Family problems with the law
.5
.6
Family financial problem
2.0
15.1
Other personal or family problems
6.9
10.3
Civilain convictions
2.0
.3
Avoidance of punishment for other actions
-
.8
Boredom, lack of satisfaction, sense of uselessness,
-
1.4
Went AWOL cause he wanted to go to Nam and they cou
wouldn't let him go
-
.3
Personal Problem w/law-not convictions
-
-
Selfish reasons
5.4
4.5
Immaturity
2.9
2.3
Primary Reasons for Offence
Civilian
Military
N
431
926
Religious objection to all war
34.1%
.4%
Ethical or moral objection to all war (non-religious
23.2%
1.0%
Specific political moral or ethical objection to the
14.9%
2.5%
war in Vietnam (not religious)
Avoid going to Vietnam
.7%
1.1%
Avoid going to overseas replacement station, not in
-
.1%
Vietnam and not known to be Europe
Went AWOL from Vietnam
-
.5%
Failed to return to Vietnam from leave or R&R
-
.2%
Post combat psycological problems complained of.
-
1.8%
Did not like service
.5%
9.7%
Other, articulated or unarticulated opposition to war
2.8%
.5%
Hindrance of CO application or failure to provide proper
-
-
assistance.
Denial of CO application.
3.2%
.2%
Hindrance of request for hardship discharge or
-
.2%
compassionate reassignment
Denial of hardship discharge or compassionate re-
.2%
1.7%
assignment.
Improper recruitment into armed forces--enlistment in
-
.4%
lieu of sentence by criminal authorities.
AFQT Category IV Project 100,000
-
2.3%
Breach of assignment preference or occupational choice.
.2%
2.6%
Denial of request for leave.
-
1.1%
Improper orders: Told to go home and wait orders;
-
.3%
lost soldier
Other procedural Unfairness
2.3%
4.6%
Drug or alcohol problems/dependency
.9%
4.9%
Personal medical problem;
1.9%
3.6%
Marital problem
.2%
8.4%
Family Medical problem
1.9%
11.1%
Family emotional or psychological problem
1.2%
2.6%
Family problems with the law
-
.1%
Family financial problem
1.6%
12.5%
Other personal or family problems
2.1%
6.4%
Civilian convictions
-
.3%
Avoidance of punishment for other actions
-
1.0%
Boredom, lack of satisfaction, sense of uselessness
.2%
1.7%
Went AWOL cause he wanted to go to Nam and they wouldn't
-
.6%
let him go
Personal Problem 2/law-not convictions
.7%
.1%
Selfish reasons
4.9%
4.3%
Immaturity
.7%
4.3%
Civilian
Military
Last known family status (applicant's family)
N
372
768
Single, no dependents
46.2%
38.4%
Single, dependents
2.7%
2.3%
Widowed no dependents
-
.1%
Seperated, no dependents
.5%
.8%
Divorced, or seperated, dependents
2.7%
3.4%
Married, no dependents other than spouse
23.7%
15.2
Married, dependents other than spouse.
21.0%
38.4%
Employment Activities at Time of Application
N
360
316
Employed, full-time, white collar
26.1%
6.6%
Employed, full-time, skilled blue collar
16.9%
22.2%
Employed, full-time, unskilled
21.1%
17.4%
Employed, part-time, white collar
.4%
-
Employed, part-time, skilled blue collar
1.1%
.6%
Employed, part-time, unskilled
2.5%
.6%
Employed intermittently
2.9%
1.6%
Unemployed
2.1%
11.1%
In trade school
.4%
.3%
In college
7.5%
2.5%
In graduate school
1.8%
.3%
In trade school, employed part-time
-
.6%
In college, employed full-time
.7%
I
In graduate school, employed, part-time
2.1%
.3%
Incarcerated, awaiting trial
.4%
.3%
Incarcerated, past conviction
3.6%
22.8%
Incarcerated, for qualifying offense (furloughed by
7.5%
11.4%
Executive Order)
Mental or Physical Problems
N
472
1009
None Noted
86.7%
71.9%
Physical Problems, No Disability
2.5%
4.0%
Physical Problem, With Disability
1.9%
2.9%
Psychological Problems pertaining to
.8%
5.0%
Reaction to Authority
Other Psychological Problems
5.7%
10.3%
Problems with drugs
1.7%
5.0%
Problems with alcohol
.6%
1.0%
Existence and Origin of Medical Problem
N
472
1009
None
93.4%
84.5%
Congenital
1.3%
2.1%
Pre-Military/Draft
4.7%
3.7%
Emanating from draft or military
-
2.9%
situation
Possibly emanating from Vietnam experience
-
.6%
Definitely emanating from Vietnam experience
-
3.1%
Post-military/draft
-
.6%
Origin Unknown
.6%
2.6%
Civilian
Military
Existence and Origin of Psychological Problems
N
472
1009
None
90.5%
78.9%
Congenital
1.9%
2.1%
Pre-Military/Draft
5.9%
5.4%
Emanating from draft or military situation
1.1%
7.0%
Possibly emanating from Vietnam experience
-
1.7%
Definitely emanating from Vietnam experience
-
3.2%
Post-military/draft
-
.3%
Origin Unknown
.6%
1.5%
Existence and Origin of Family Pro' lems
N
472
1009
None
86.9%
60.2%
Congenital
.4%
4.9%
Pre-Military/Draft
7.2%
12.1%
Emanating from draft or military situation
4.2%
15.8%
Possibly emanating from Vietnam experience
-
.4%
Definitely emanating from Vietnam experience.
-
.1%
Post-Military/draft
.2%
1.4%
Origin Unknown
1.1%
5.3%
Existence and Origin of Problem with the Law
N
472
1009
None
71.8%
75.8%
Pre-Military/Draft
5.3%
.7%
Emanating from draft or military situation
21.8%
19.0%
Possibly emanating from Vietnam experience
-
.6%
Definitely emanating from Vietnam experience
-
1.4%
Post-military/draft
-
1.7%
Origin Unknown
1.0%
.7%
Existence and Origin of Financial/Employment
Problems
N
472
1009
None
93.5%
81.0%
Congenital
.2%
1.2%
Pre-Miiitary/Draft
1.3%
3.9%
Emanating from draft or military situation
4.2%
10.4%
Possibly emanating from Vietnam experience
-
.3%
Definitely emanating from Vietnam experience
-
.2%
Post-military/draft
.2%
.7%
Origin Unknown
.4%
2.4%