[Standard disclaimer: This post is made purely in my personal capacity. It should not be imputed to anyone or anything else.]
In this house at Point Pleasant, Ohio, on April 27, 1822, Hiram Ulysses Grant was born. As an uncharacteristically clever historical marker at the site explains, “Grant later attended the military academy at West Point, where his name was changed to Ulysses S. Grant due to an administrative error. The army informed Grant that this was and would remain his name.”
The “Contingencies of Proof” road trip is a journey to explore military justice history. Grant offers numerous tie-ins. But rather than concentrating on Grant’s time as a general officer, this post explores his exercise of the pardon power while serving as the United States’ 18th President.
A general order issued on Oct. 10, 1873, announced that President Grant “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 enlistment.” Reprinted in 20 Op. Atty’ Gen. 330, 345 (1892).
The persistent problem of desertion is a thread running through this road trip. At our first stop in Beaver, Pennsylvania, we saw Major Wyllys use a big stick to address the problem: he ordered that three captured deserters be summarily executed. Secretary of War Henry Knox described that display “as a terror to the rest of the troops.” 30 J. Continental Congress 433 (1786). The executions apparently produced the desired general deterrent effect; Major Wyllys reported to Secretary Know that “[n]o desertions have happened since.” Id. at 120. General Grant, on the other hand, used the carrot: pardon and restoration to those deserters who would return to duty.
Grant was far from the first former general to use the pardon power in a military context as President. That distinction belongs to President Washington.
On July 26, 1796, Secretary of War James McHenry wrote a remarkable letter to President Washington. It concerned a court-martial conviction of Lieutenant Simon Geddes (sometimes spelled “Geddis”), though the offense of which he was convicted is, unfortunately, not mentioned. He noted that he had received a request from officers at West Point to release Geddes from arrest. Secretary McHenry cited article II, § 2 of the Constitution as providing the President with a pardon power that extended to court-martial convictions, adding that “Congress cannot pass any regulations for the government of the land and naval forces which may intrench upon, invalidate or nullify this power to pardon offences against the United States.”
On August 12, 1796, Washington issued the first presidential pardon for a court-martial conviction. He wrote: “Whereas at a General Court Martial held at West Point, May 12th, 1796, for the trial of Lieutenant Geddes, of the Corps of Artillerists and Engineers, . . . the Court sentenced the said Lieutenant Geddes, to be dismissed from the service of the United States. Be it known that I George Washington, President of the United States in consideration of the youth and inexperience of Lieutenant Geddes and for divers other good causes, have thought fit to pardon, and hereby do pardon, Lieutenant Geddes aforesaid, of the offence whereof he has been convicted, and do declare that the sentence of the Court aforesaid be hereafter held as nought, and that the said Lieutenant Geddes be reinstated in his command in the Corps of Artillerists and Engineers.”
There is a lot more to the story of Lieutenant Geddes. Later that same year, he fought a duel with another lieutenant arising from his court-martial conviction. Geddes shot his adversary in the chest, killing him instantly. For that, Geddes was dismissed from the Army.
In contrast to the brevity of Lieutenant Geddes’ Army career, the President’s authority to exercise the pardon power for military offenses, first exercised in his case, lives on. And as in the case of President Grant’s pardon of Army deserters, it would sometimes be exercised even before a conviction.
The exercise of that pardon power has, at times, been controversial. President Grant’s exercise of that authority demonstrated its utility when properly used.
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