Friday, January 9, 2009

An Attorney General Opinion Addresses the "Delivery" Issue

27 U.S. Op. Atty. Gen. 178, 1909 WL 469 (U.S.A.G.), at 181:

Nor is the form which this pardon may assume at all important, or the manner of its promulgation. Whenever the President, as an act of grace or clemency, intervenes to condone, in whole or in part, an offense committed, or to prevent or remit the whole or a portion of a punishment ordered; or to commute the whole or a portion thereof by the substitution of another less severe; or to remove disabilities consequent upon conviction; and in whatever form this is done, whether by a formal pardon directed and delivered to the beneficiary, by executive order through the Adjutant-General, or by a proclamation of amnesty to a class of offenders, this is always and necessarily an exercise of the pardoning power vested in the President by the Constitution. In no other way can the President interfere to condone an offense, prevent or mitigate a punishment adjudged, or remove disabilities consequent upon conviction.

That such pardon to be effective need not be addressed to the beneficiary is abundantly shown by the various proclamations of pardons and amnesty granted by different Presidents to large classes of offenders, and which have been uniformly upheld as effective by the Supreme Court. See 1 Winthrop Mil. Law, 2d ed. 714-715.

In such cases all persons embraced in the proclamation are entitled to its benefits, although they may never before have heard of the amnesty. Indeed, the usual way of pardoning military offenders is by executive order promulgated and entered in the records of the War Department. (1 Winthrop, 714.)

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