The exercise of the clemency power has been a major source of controversy in few presidential administrations. On occasion, however, exercise of the president's constitutional power to "grant pardons and reprieves for offenses against the United States"(1) has evoked both gratitude and consternation among the citizenry and public officials, with ramifications reaching far beyond the individual recipients of executive clemency. The clemency actions of Abraham Lincoln are perhaps the classic case in point. In this article, we briefly review the literature on Lincoln's use of clemency and, in the process, attempt to extract generalizations with respect to Lincoln's decision making. We then examine a routinely ignored aspect of Lincoln's clemency policy: the 331 warrants that were issued to individuals who were convicted in the civil courts. We believe that our research fills a critical gap by providing an interesting, systematic, and reliable "inside" approach to this interesting topic.
The records of the attorney general and the commentaries of Lincoln's contemporaries suggest that Lincoln readily used the pardoning power. Furthermore, Lincoln gained a reputation for being moved by appeals for mercy with his magnanimous approach to clemency requests. It is further evident that Lincoln occasionally granted clemency (and amnesty) with an eye toward certain political ends or as a component of an overall military strategy. As with any dimension of Lincoln scholarship, sifting fact from fiction can be a formidable task. Apocryphal tales abound of pardons being issued minutes before hangings(2) and of convicted youths fighting and dying valiantly after receiving pardons from the commander-in-chief(3) Many such stories are dubious On their face and have little corroborating evidence.(4) The clemency policy of the Lincoln administration was, however, clearly highlighted by his recognition of the strategic potential of the clemency powers, his wartime amnesty policy, and the Minnesota Sioux Conflict.
Clemency as a Military Strategy
Lincoln is widely acclaimed as having recognized the strategic potential of clemency during a time of war. He pardoned a considerable number of Union soldiers in a conscious effort to boost the morale of the Union's fighting forces. At the same time, he pardoned citizens from rebellious states in an attempt to regain their loyalty and trust. Indeed, Lincoln was widely admired among Union troops because of the perception that he took a genuine interest in their well-being. This perception was, of course, reinforced with each pardon of a military offender.(5) Bell Irvin Wiley reports that of all the sentences of death imposed on Union soldiers for sleeping on post that crossed Lincoln's desk for his signature, none received his approval.(6)
Lincoln's general policy with respect to military offenders is, however, somewhat difficult to evaluate accurately. Consider the case of Private William Scott of Vermont. In 1867, George T. Stevens wrote that Scott had fallen asleep while on guard duty in the fall of 1861. Scott was court-martialed and sentenced to death. The private was taken to the place of execution, and a firing squad stood waiting for an order. Instead of an order to fire, a pardon was read that had been issued by Lincoln. Stevens maintains that this was the first military death sentence case in which executive clemency was extended by Lincoln and claims that Lincoln brought the pardon to the camp himself to make sure that it was received in time to halt the execution.(7) William E. Barton notes, however, that Scott's story came from L. E. Chittenden and that "there is no evidence that Lincoln ever knew of the case."(8)
Lincoln nonetheless was perceived as sympathetic to the plight of the common soldier. Estimates of the number of deserters range well over 100,000,(9) and one of the most commonly accepted anecdotes in the literature reflects Lincoln's sympathy for deserters:
They are the cases that you call by that long title cowardice in the face of the enemy, but I call them, for short, my "leg cases." But I put it to you, and I leave it for you, to decide for yourself: if Almighty God gives a man a cowardly pair of legs, how can he help their running away with him?(10) In 1864, Lincoln ordered the War Department to commute the death sentences of deserters to confinement until the end of the war and to allow commanding generals to reinstate convicted deserters if it was thought that they would be of use to the service.(11) Sixty-two deserters who were to be executed were spared in a single act in May 1864.(12)
The sympathetic nature of Lincoln also was perceived, and criticized, by a host of military leaders. Lincoln assented to few death sentences imposed by military courts, and only after he had examined the facts of each case and determined that the sentence was appropriate.(13) Colonel Theodore Lyman explained the lack of military discipline as resulting from "the uncertainty of the death penalty through the false merciful policy of the president.(14) Reports of Lincoln's numerous acts of clemency were widely circulated in the army,(15) and General Dan Tyler went so far as to blame the rout of his troops by the vastly undermanned General Braxton Bragg on Lincoln's pardoning of deserters.(16) General Benjamin F. Butler telegrammed Lincoln requesting that the president not "interfere" with the court-martials of the army.(17) General William T. Sherman found a way in which to deal with the president's disposition. When someone inquired from the general how he was able to execute court-martialed offenders without Lincoln interposing pardons, he replied, "I shot them first."(18)
In sum, Lincoln's overall clemency policy is somewhat distorted by legendary accounts of military offenders. His use of clemency was, however, influenced considerably by a military strategy that aimed to encourage Union troops to fight and to encourage citizens of the rebellious states to return to the fold. John P. Usher, secretary of the interior under Lincoln, felt that the president's "great effort" was "to find some excuse, some palliation for offenses charged," striving "at all times to relieve the citizens on both sides of the inconveniences and hardships resulting from war."(19)
Wartime Amnesty Policy
A second salient feature of clemency policy during the Lincoln administration is the December 8, 1863, issuance of a "Declaration of Amnesty and Reconstruction." Lincoln issued the proclamation on the same day as his annual message to Congress outlining his plan for dealing with the rebellious South. Congress had indicated its conditional approval for the president to engage in such a measure by its act of July 17, 1862, stating that the president had the ability "to extend to persons who may have participated in the existing rebellion in any state or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare."(20) According to Lincoln's plan, if at least 10 percent of the number of voters in the 1860 presidential election in a rebellious state took an oath and constructed a republican government for the state, then they could receive recognition and protection under the Guarantee Clause of Article IV,, section 4.(21)
The issue of clemency was directly addressed in the proclamation by its pronouncement that those involved in the rebellion (excluding those such as Confederate officers and agents) may receive full pardons and restoration of rights by taking an oath to support the Constitution, the Union, and all federal laws and presidential proclamations on the subject of slavery.(22) Anticipating criticism, Lincoln contended that "nothing is attempted beyond what is amply justified by the Constitution."(23) He further argued the noncompulsory nature of the plan, and the broad scope of executive power encompassed within the constitutional grant of authority to pardon reinforced the validity of the proposal. Lincoln noted,
True, the form of an oath is given, but no man is coerced to take it. The man is only promised a pardon in case he voluntarily takes the oath. The Constitution authorizes the executive to grant or withhold the pardon at his own absolute discretion, and this includes the power to grant on terms, as is fully established by judicial and other authorities.(24) Lincoln further emphasized that avoiding rigidity in the process of reconstruction would be integral in his approach to the hornets' nest of complex constitutional and tactical concerns.
Saying that, on certain terms, certain classes will be pardoned, with rights restored, it is not said that other classes, or other terms, will never be included. Saying that reconstruction will be accepted if presented in a specified way, it is not said it will never be accepted in any other way.(25) Lincoln's flexibility in seeking the restoration of national authority, however, left a number of unanswered questions concerning the proper scope and administration of the provisions of the amnesty proclamation. Ambiguity in the wording of the original December 8 proclamation prompted Lincoln to issue the "Proclamation about Amnesty" on March 26, 1864.(26) In the second proclamation, Lincoln specified that those individuals under civil or military custody or confinement were not covered under the provisions of the original plan.(27) In addition, Lincoln indicated that commissioned federal and state-authorized civil and military officers could administer the oath and gave directions concerning transmittal of oath-related records.(28)
The proclamation is the subject of conflicting reports as to the manner in which it was received by public officials, particularly those in Congress. Mark E. Neely Jr. suggests that both radicals and conservatives viewed the proposal favorably,(29) and Joseph H. Barrett echoes similar sentiments.(30) Charles H. McCarthy, on the...