October 1973 | Volume 24, Issue 6
When the American Revolution forced the colonists to replace their English charters as the base of government, all thirteen states made some provision for pardon in their constitutions, five of them vesting it fully in the executive. Congress did not include the power in the Articles of Confederation, but in 1787 the delegates to the Constitutional Convention—with only slight reservation—restored the pardon as an executive right. It has remained with the President ever since, although it is possible for Congress, under the, provisions of the “necessary and proper” clause, also to grant amnesty.
Article II, Section 2 of the Constitution confers on the President authority “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It is a free and full power, for the President may exercise it without interference from Congress or the courts. In fact, he may grant pardons—as the distinguished constitutional historian E. S. Corwin points out—“for good reasons, bad reasons, or no reason at all.…”
From George Washington onward, Presidents have assumed that the pardoning power carried with it the right to proclaim amnesties. The distinction in the law is a fine one and, simply put, means that a pardon is usually an individual, private act granted after a conviction has been secured, while an amnesty is taken to be a class action designed to arrest the movement of the law before trial and conviction have taken place.
With the granting of an amnesty society overlooks the offense and takes no legal steps against the offenders. All indictments are. cancelled, there are no trials, and convictions already secured are expunged. In short, society chooses to absolve the offenders from all future consequences of their acts and restores them to full citizenship as if the offense had never taken place. It does so—as the Supreme Court noted in 1915—because “forgiveness is deemed more expedient for the public welfare than prosecution and punishment” in a given instance.
An amnesty, then, is a form of general pardon. Since 1795, when Washington amnestied participants in the Whiskey Rebellion, fifteen Presidents have availed themselves of the power on thirty-seven separate occasions. The following is a representative sample of instances throughout our history when the opportunity for pardon and amnesty arose.
Discontent and violence erupted in the Monongahela Valley of western Pennsylvania in the spring and summer of 1794 as farmers from four counties reacted to attempts of the federal government to enforce a tax on whiskey. For many of the farmers the only way to get grain to market (Spain had closed the Mississippi to American trade) was to convert it to whiskey. Moreover, in an area where hard money was in short supply, whiskey had become a medium of exchange. Protesting the excessive duty on liquor and the violation of their civil rights in what they took to be highhanded efforts to collect the tax, the farmers drove the tax agents from the counties, stopped the mails, and closed the federal courts. At one point several thousand armed men threatened to sack the town of Pittsburgh, and there was talk that an army would march on Philadelphia.
Efforts to negotiate with the rebels broke down, and Washington, calling the rebels’ action treason, raised an army of thirteen thousand men from the militias of several states. After some weeks of prowling through Pennsylvania the army was withdrawn and the insurrection declared at an end. Fewer than a hundred suspects were rounded up—there had been no fighting—and perhaps twenty were brought to trial. Two of these were found guilty, but on examination one was discovered to be feebleminded and the other insane. In separate and private action Washington subsequently pardoned both of the men.
In the meantime, on July 10, 1795, the President pardoned all those who had participated in the uprising and had since signed an oath of allegiance to the laws of the United States. Exempted from the pardon were any persons currently under indictment for continued violation of the laws or for failure to sign the required oath of renewed allegiance.
As he explained to Congress later, Washington was convinced that the “misled have abandoned their errors, and pay the respect to our Constitution and laws which is due. … though I shall always think it a sacred duty to exercise with firmness and energy the constitutional powers with which I am vested, yet it appears to me no less consistent with the public good … to mingle in the operations of Covernment every degree of moderation and tenderness which the national justice, dignity, and safety may permit.”
A second instance of rebellion, known as the Fries Uprising, took place in Pennsylvania in March, 1799, this time in three eastern counties: Northampton, Bucks, and Montgomery. The issue was a direct federal property tax passed by Congress in 1798 in anticipation of war with France. A roving auctioneer named John Fries successfully raised several hundred men to oppose the government’s efforts to collect the tax. After they had chased the tax collectors from the area and freed three tax dodgers from the Bethlehem jail, President Adams proclaimed the uprising treason and sent in the militia to put it down. The troops found no insurrection—the armed men had long ago dispersed—but did capture Fries and two of his lieutenants, who were brought to trial, found guilty, and sentenced to hang.
Informed of the death penalty imposed on Fries, Adams assembled his Cabinet for direction. The Cabinet unanimously opposed the extension of pardon, but Adams decided to “take on myself alone the responsibility of one more appeal to the humane and generous natures of the American people.” He pardoned the three condemned men and on May 21, 1800, extended a “full, free and absolute pardon” to virtually all the remaining insurrectionists.
With the onset of the second war with Great Britain in 1812, Congress authorized a 166,000-man army to be drawn primarily from the state militias to supplement the seven-thousand-man Regular Army. Three New England states refused to comply with Congress’ request, and elsewhere recruiting proved difficult. In 1814, following two years of disastrous defeats that culminated in the burning of the city of Washington, President Madison asked for a congressional draft of forty thousand men. Both houses passed separate bills, but before the differences between them could be ironed out, the war ended and the draft issue was dropped.
On three separate occasions (February and October, 1812, and June, 1814) Madison attempted to bring the small Regular Army up to strength by offering a general pardon (as President Jefferson had done in October, 1807) to any deserters who reported for duty within four months of the proclamation date.
No general pardons were granted to deserters after the war had ended. The only postwar amnesty was directed to the Barataria pirates. For some years prior to 1814 about eight hundred pirates under the command of the notorious Lafitte brothers had plied their trade along the Gulf coast until in September, 1814, the U.S. Navy closed their base at Barataria in the bayous south of New Orleans. Under indictment for piracy, the Baratarians nonetheless refused a bid to join with the British and offered instead to help in the defense of New Orleans. A reluctant Andrew Jackson finally accepted their services, and the “hellish banditti” (as he called them) were instrumental in defeating the English troops.
Acting on a petition from the I/uiisiana legislature and convinced in his own mind that the pirates had “abandoned … the worse cause for the support of the best,” Madison concluded that they could “no longer be considered as objects of punishment, but as objects of a generous forgiveness.” Accordingly, on February 6, 1815, he tendered a “free and full Pardon” to any accused pirate who could produce written proof from the governor of Louisiana that he had taken part in the successful defense of New Orleans, provided no act of piracy had taken place after January 8, 1815.
Because Congress had lately redrafted the military code, repealing the death penalty for deserters in peacetime, President Jackson issued an executive order on June 12, 1830, extending “free and full pardon … to those who at the date of this order stand in the character of deserters.” All those in prison were freed and returned to duty. Those still at large and those under the death sentence were ordered discharged and prohibited from all future military service. Wrote Jackson, “… the ranks of the Army should be composed of respectable, not degraded materials.”
Nearly fifty thousand troops for the Mexican War were raised entirely from volunteers. There were no conscripts, and the state militias were not called on to serve. Despite formidable opposition to the war in New England the government had little difficulty in filling the ranks. President Polk later told Congress that the war had proved again that it was unnecessary to have a large peacetime army. “Unlike what would have occurred in any other country,” he said, “we were under no necessity of resorting to drafts or conscriptions. On the contrary, such was the number of volunteers who patriotically tendered their services that the chief difficulty was in making selections and determining who should be disappointed and compelled to remain at home.”
There was no general pardon for deserters at the war’s end.
The Civil War amnesties are the most complicated of any in our history, if only because the questions of whom to pardon and when were not fully resolved until 1898. In addition, the use of the pardoning power by the President came into dispute, and the effect of his pardons was temporarily lost in the resultant power struggle with Congress. The passage of the Fourteenth Amendment markedly changed the constitutional grounds of the matter, and in the end full amnesty was only achieved by a combination of Presidential pardon and congressional amnesty.
What is clear is that the Union side from the beginning viewed pardon as the requisite preliminary to restoration of the South as a political entity. Starting with President Lincoln’s proclamation of conditional pardon on December 8, 1863, which required an oath of allegiance to “henceforth support, protect and defend the Constitution,” the Union gradually reduced the number of exempted classes until virtually all Southerners were pardoned. Between them, Lincoln and Johnson issued six conditional pardons. The last of these, proclaimed on December 25, 1868, was to all intents and purposes a universal amnesty.
However, Congress in the interim had taken control of suffrage and officeholding under the Fourteenth Amendment, and despite Johnson’s unconditional pardon some 150,000 Southerners were barred from voting until Congress moved to remove the disability. In a congressional amnesty on May 22, 1872, the number of exempted Confederates was reduced to between five hundred and seven hundred men. Their disabilities in turn were removed by a series of individual bills in Congress through February 24, 1897. Complete amnesty was achieved the next year when, on June 6, 1898, more than thirty years after the war had ended, Congress approved a universal and unconditional amnesty for any Southerners still disabled by Section 3 of Amendment 14.
If in time the majority of Union military deserters and draft evaders secured pardon, they did so through individual petition to the President. There were two conditional general pardons for deserters. The first, proclaimed on March 11, 1865, granted full pardon to all deserters who returned to their units within sixty days and served a period equal to the original term of enlistment. Johnson offered a conditional pardon on July 3,1866, to deserters who returned to their units by August 15,1866. Such men would escape punishment but would have to forfeit their pay. There was no universal amnesty.
Like the Mexican War fifty years earlier the Spanish-American War was fought almost entirely by volunteers. There was no draft, and the militia was not called up. The Regular Army of twenty-eight thousand was swiftly increased to 210,000 in 1898 and reduced almost as quickly to eighty thousand the next year.
There was no general pardon nor amnesty for deserters at the war’s end.
The annexation of the Philippines, one of the acquisitions of the Spanish-American War, ultimately cost more in both lives and money than the entire war against Spain as a result of the Philippine Insurrection. Initially the United States had employed the rebels under Emilio Aguinaldo in the capture of Manila, but when the terms of the Treaty of Paris were made known, the Filipinos refused to accept an American take-over and began to fight their one-time allies. Some seventy thousand U.S. troops were rushed to the islands to confront a rebel army almost as large. By the end of 1899 formal resistance had given way to guerrilla warfare, but it was two years before the insurrection came to an end and a civil government was established. Aguinaldo, in the meantime, had been taken prisoner by the Americans in March, 1901.
On July 4, 1902, President Roosevelt offered a conditional pardon and amnesty to a majority of the insurrectionists, provided they signed an oath of allegiance to United States authority in the islands. The Moro tribesmen, who continued to fight, were as a class exempted from the pardon, as were all persons convicted of, or under indictment for, “murder, rape, arson, and robbery.” The latter, however, were free to ask for individual pardons in the light of their particular circumstances.
There were no general pardons or amnesties extended to deserters from the American forces sent in to suppress the insurrection.
World War I is the first of the nation’s wars to reflect present-day conditions, that is, to engender a population of military deserters, draft and war resisters, and draft evaders who would benefit from amnesty of the kind now sought after the Vietnam war. A policy of selective pardon, rather than general amnesty, was adopted.
When the war began, the United States Army numoered about two hundred thousand men. By the end of 1918 that number had swollen to nearly four million, more than half of whom had been drafted. Open resistance to the draft was at a minimum (compared with what had taken place in the Civil War) despite its being the first truly comprehensive draft in history. More than twenty-four million men were registered, and eventually 2,810,296 were inducted. There were, however, some two hundred thousand draft evaders, who, if caught and found guilty, were subject to up to five years in prison.
A total of 3,989 conscientious objectors were assigned to alternative service or to noncombatant military service. Four hundred and fifty men who failed to meet the narrow test for C.O. status or who simply refused outright to cooperate with the military system in any way (for example, by refusing to register for the draft) were imprisoned for terms up to five years.
The precise number of military deserters is not known, but the figure undoubtedly ran into the thousands. Between the armistice and February, 1920, for instance, 11,089 men deserted the Army.
In addition, there were at least two thousand “political” prisoners who had been found guilty and jailed under two wartime measures, the Espionage Act of 1917 and the Sedition Act of 1918. The latter prohibited, among other things, the use of “profane, scurrilous or abusive language” against the government or any of its leaders. Both laws provided for fines up to ten thousand dollars and prison terms up to twenty years. Hundreds of Socialists, including Eugene Debs, the party’s Presidential candidate in 1916, who opposed the war on ideological grounds, were sent to prison. Debs was sentenced to ten years. Several hundred members of the Industrial Workers of the World ( I.W.W. ), including “Big Bill” Haywood, who received twenty years, were similarly jailed for opposing the war.
With the armistice various peace groups pressed for amnesty without success. Wilson adamantly refused to consider the matter, either as a general pardon for all or as individual pardons granted case by case. The clearest statement of his position concerned Debs, whose release had been the subject of numerous editorials once the war was over. Speaking privately to an aide, the President said: “I will never consent to the pardon of this man. … Were I to consent to it, I should never be able to look into the faces of the mothers of this country who sent their boys to the other side. While the flower of American youth was pouring out its blood to vindicate the cause of civilization, this man, Debs, stood behind the lines, sniping, attacking, and denouncing them.… This man was a traitor to his country and he will never be pardoned during my administration.”
Debs was finally pardoned by Warren Harding on Christmas Eve, 1921, along with twenty-three other political prisoners. Over the next two years Harding freed hundreds of others on a case-by-case basis, refusing to resort to general amnesty. In June, 1923, in one of his last acts as President, he freed twenty-seven members of the I.W.W.
After Harding’s death Coolidge continued his predecessor’s practice of freeing political prisoners after a case-by-case review. On March 5, 1924, he pardoned nearly one hundred deserters who had left their units after November, 1918. But neither Wilson nor Harding nor Coolidge pardoned any wartime deserters or draft evaders.
The last of the World War I pardons was tendered by Franklin Roosevelt on December 23, 1933, in a Christmas amnesty that, fifteen years after the war, restored voting rights and other civil liberties to fifteen hundred violators of the Espionage Act who had finished serving their sentences.
Similarly, in World War II , a policy of selective pardon was followed. Nearly 12,466,000 Americans served in the armed forces during the war. Of these, 8,300,000 were in the Army, and 61 per cent of them were draftees. The official figure for draft evasions is 348,217, but this figure is misleading because it lumps together technical violations (e.g., reporting on the wrong day) as well as direct evasions. In any case the number of evasions was substantial.
In all, 36,887 men claimed C.O. status or volunteered for alternative service under the draft classification IV-E . A total of 6,086 men were imprisoned either because they had refused induction outright, refused to register for the draft, or failed to meet the narrow test for C.O. status. Among them were more than four thousand Jehovah’s Witnesses who were refused deferments as ministers of their faith, 167 Negro Muslims (now Black Muslims) who refused to join a segregated army, and a number of Hopi Indians whose pacifism was not recognized by the government.
As in World War I the number of deserters is not known, but as late as 1944 the Army was recording a rate of sixty-three desertions for every thousand men on active duty.
At the war’s end President Truman refused to grant a general amnesty for military deserters or draft evaders, and none has been granted since. Truman did, however, grant a number of limited pardons. The first, granted on December 24, 1945, pardoned civilian prisoners who had volunteered for military service and who upon completion of a year’s duty or more received an honorable discharge. The effect of the pardon was to restore their full civil and political rights.
The second Truman pardon was granted to 1,523 draft evaders who had served or were serving prison terms. Like the first, this was a Christmas Eve pardon, and it came twenty-three months after the end of the war, December 24, 1947. A year earlier Truman had established a three-man review panel to examine some fifteen thousand cases of draft evasion. Chaired by Owen J. Roberts, a former Associate Justice of the Supreme Court, the President’s Amnesty Board included James F. O’Neil, the chief of police of Manchester, New Hampshire, and later national commander of the American Legion, and Willis Smith, former president of the American Bar Association and later governor of North Carolina. Well aware that it had recommended pardons for only one out of every ten cases it reviewed, the board defended its choices in these words: “We found that some founded their objections on intellectual, political or sociological convictions resulting from the individual’s reasoning and personal economic or political philosophy. We have not felt justified in recommending those 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.”
On December 24, 1952, Truman granted full pardon and restoration of civil and political rights to former convicts who had served in the peacetime army between August 14, 1945 (the end of active hostilities in World War II ), and June 25, 1950 (the Korean invasion), and who had not been covered by his earlier pardon. In addition, he pardoned all convicted peacetime deserters from the military up to June 25, 1950.
A maximum duty force of 3,700,000 was raised for service during the Korean War. Twenty-seven per cent were draftees. Surprisingly, both the draft-evasion rate and the desertion rate were the lowest of the four wars in this century. At the height of the war in 1952 only twentytwo men per thousand were reported as deserters; in 1954 the rate had dropped to 15.7. In 1950, 109 men were imprisoned for draft evasion; in 1955 the number totalled 217. Exact figures for intervening years are unavailable.
There was no general amnesty for either military deserters or draft evaders.
By the end of American ground participation in the Vietnam war early in 1973 more than six million men had served in Vietnam. Roughly 25 per cent were draftees. Although fully reliable statistics are difficult to come by—even government figures vary on occasion by several thousand—it is estimated that nearly 450,000 desertions took place from 1966 onward. As of November 1, 1972, 32,557 deserters were still at large. Of these, more than thirty thousand are thought to be underground in the United States, the remainder in foreign countries (principally Canada and Sweden).
The number of draft evaders is in excess of twenty-four thousand for the years 1966 through 1972. Nearly five thousand of them are still at large. Of these, 2,300 are thought to be in Canada, and perhaps 1,700 are underground in the United States.
Whatever the true figures—and possibly they can never be accurately reckoned—a sizable number of Americans have lost—or face the loss of—civil rights because of the stand they took during the war. At some point the nation will have to decide whether to forgive them in a general amnesty, to offer amnesty conditional on public service or some form of punishment, or to ignore them entirely, leaving them, in effect, to seek an individual pardon whenever they wish to be restored to full participation in American life.