The Executive Clemency of George Washington: One of Just a Handful of Pardons Ever Signed by President George Washington

We know of only four pardons that have survived the centuries. The president who set the precedent for using the pardon power enshrined in the U.S. Constitution frees a man “certified to be otherwise fair and honest”

Clemency has been a prominent feature in the legal history of English-speaking peoples. The power to pardon was familiar as an unlimited power of the King of England, and was necessary because the way the law was applied. In England back then, it was common for minor offenses to carry a sentence of death, with pardon by the King being the only way to avoid the punishment. Judges often applied a death sentence, having no choice, but at the same time applied for a Royal Pardon in the same breath. The topic of presidential pardons in the United States arose at the Constitutional Convention, and prompted a prolonged and heated debate. Alexander Hamilton, knowing the English precedent, argued in the Federalist Papers that the right to pardon “should be as little as possible fettered or embarrassed”, explaining “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law…” His view prevailed, and Article II, Section II of the Constitution, drafted by Hamilton, states the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Thus the American president has the ability to circumvent the justice system by issuing official pardons to anyone of his choosing. Unlike most executive powers, the authority to grant clemency is unchecked by Congress and cannot be reviewed, blocked or overturned. The clemency actions of presidents have been the focus of Supreme Court cases, and have been intimately connected with some of the most significant political events in U.S. history. These include the Whiskey Rebellion, the Alien-Sedition Acts, the Civil War and its aftermath, and the resignation of Richard Nixon.

It fell to President George Washington to set the precedent to use or not use the pardon power. During the Revolution, Washington was unsympathetic to deserters, thinking desertion the "basest principle that can actuate a soldier." And though he issued blanket pardons of deserters who would return to service, he wrote, “I have never found that the offer of pardons to deserters upon voluntary surrender has been attended with any substantial advantage”. He did not pardon many of those caught and convicted of desertion. He carefully scrutinized requests for pardons in other cases, including treason and mutiny, and granted some and not others. He appears to have acted not out of any political strategy, but on a sense of justice taken on a case by case basis. Once president, he would deviate in one important case, but otherwise act consistent with his previous conduct.

The influence of Washington's clemency policy is striking. He signed very few clemency warrants as President, perhaps as few as 16, and of those known 16, since some were issued for multiple applicants, they covered 28 individuals. Although he issued so few warrants, most of the subcategories of explanations used over the first score of years of the new republic were initiated during his administration. The categories for the 16 documents included treason (16 men), trade violations (such as embargo violations and illegal importations) (5 men), and one each for breach of revenue laws, manslaughter, larceny, sending threatening letters, and one for an unknown misdemeanor. As during the war, deserters received no sympathy. The pardons show that although Washington placed importance on legal considerations (such as criminal intent, the commission of the crime, and features of the case), legal considerations were not paramount to him. He clearly viewed personal characteristics of individual petitioners (e.g. poverty, good character, good conduct, state of contrition) as legitimate considerations in clemency decision making. Almost 40% of Washington's justifications reference such factors.

The Whiskey Rebellion in 1794 was seen as one of the first tests of the new government, and Washington led 13,000 troops into the western portion of Pennsylvania to quell it. The uprising quickly disintegrated and subsequent trials resulted in the conviction of only two individuals. Washington pardoned both, and on his last day in office, extended clemency to 10 others in the region charged with "high treason." This multiple pardon was the deviation from his wartime practices.

Washington's 7th State of the Union Address dealt with his policies toward pardons.  He wrote: "These Circumstances [have] induced me to extend clemency and pardon to the few who were adjudged to capital Punishmt for Altho I shall always think it my duty to exercise the constitutional [powers] with which I am vested, with Energy and Firmness, yet it appears to me to be no less consistent with the public good, than [it is] with my own feelings, to [accompany] the operatives of [governmt. with] every degree of mildness moderation and Tenderness which the national Justice Safety and [dignity] may permit.”  

Just weeks before signing this, he defined his policy of pardoning in his State of the Union, which would establish this precedent:  "These Circumstances [have] induced me to extend clemency and pardon to the few who were adjudged to capital Punishmt for Altho I shall always think it my duty to exercise the constitutional [powers] with which I am vested, with Energy and Firmness, yet it appears to me to be no less consistent with the public good, than [it is] with my own feelings, to [accompany] the operatives of [governmt. with] every degree of mildness moderation and Tenderness which the national Justice Safety and [dignity] may permit.”

Laws in place at the time made it a crime that could be prosecuted on land to commit murder or manslaughter at sea. In February 1795, a Massachusetts court convicted Joseph Hood of manslaughter on the high seas, in that he “mortally injured John Antony, by assaulting and beating him with a rope and a stave and his hands and feet, and exposing him without sufficient covering to the cold, winds and storms, and depriving him of necessary food, of all which injuries he languished on the high seas and…died at Boston.” This is the pardon for manslaughter mentioned above.

Just weeks after he wrote those words for his State of the Union, he enacted this policy with this very document.

Document signed as President, Washington, January 2, 1796. “Whereas Joseph Hood, late of the Massachusetts, mariner, at a Circuit Court of the United States lately holden in and for the said Massachusetts District was lately convicted of the crime of manslaughter committed on the High Seas and within the jurisdiction of the same Court, and by the Judgment of the same Court this said Joseph Hood was sentenced & adjudged to suffer eighteen months imprisonment, to pay to the use of the United States the sum of five hundred dollars, and to stand committed until the Judgment of the Court was complied with; and whereas the said Joseph Hood hat by his petition to me set forth that he has already sustained an imprisonment of many months before his trial and hath an aged mother to maintain, and the character and conduct of the said Joseph Hood is certified to be otherwise fair and honest, and the said Joseph Hood by his petition hath besought a remission of so much of the said Judgment of the Court as subjects him to further imprisonment. Therefore, I, George Washington, President of the United States, in consideration of the premises herein before set forth have thought proper, and by these presents do grant unto the said Joseph Hood a full, free and entire pardon of the said offense whereof he so stands convicted, so far as the game relates to the further term of imprisonment part of the judgment of the said Court and not otherwise, hereby willing and requiring that when and as soon as the said Joseph Hood shall have satisfied the Judgment of the said Court so far as the same relates to the fine and costs of prosecution on him imposed to be forthwith discharged from custody.” The pardon is countersigned by Secretary of State Timothy Pickering, and the seal of the United States is still intact.

Below a Massachusetts marshal has written, Boston, January 15, 1796, “Joseph Hood within named having paid me the sum of five hundred dollars fine and costs of prosecution, by virtue of these presents, I have forthwith discharged the aid Joseph Hood from custody.”

Interestingly, Hood’s attorney appealed his conviction. The act was committed at sea, but Anthony had not died there, but lived to reach Boston. This was a situation technically not covered by the law. In August 1795 the conviction was stayed on the ground that the indictment charged that the cause of death arose on the high seas, and was thus not within the jurisdiction of the court. But although his conviction was stayed, it was not reversed, and thus he sought and received President Washington’s intervention.

The number and nature of the Washington pardons is known from the warrants for them that reside in the National Archives. The original Washington signed pardon documents themselves were, however, sent out to the involved parties, their attorneys, local marshals, etc. How many of them have survived the two centuries and more? We sought the answer, and have found four definitively: this one, plus two in institutions, and a fourth that sold decades ago, with its present whereabouts unknown. This is surely one of the few Washington signed pardons in private hands, and may well be the only one.