Abraham Lincoln to Major General Frederick requesting a pardon of Willard Randolph Steele. Image sourced here.
“Lincoln is a man of heart--aye, as gentle as a woman’s and as tender--but he has a will as strong as iron.”
William Herndon
Lincoln's SympathiesLincoln issued a total of 343 pardons throughout his two terms, a moderate amount in comparison to other presidents (FDR ranks the highest with 3,687) (1). Yet what is distinctive and important about these pardons is the circumstances in which they were granted. While a bloody civil war raged on, and the formidable question of emancipation gripped the nation, a weary president took the time to consider the many requests of pardon brought before him. Pardons of Confederate traitors at least make political sense: forgive the South and the goal of Union is possible. But in the cases of the Sioux Indians and Union deserters: Why not let the guilty die and be done with it?
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From 1:06:12-1:12:17, D.W. Griffith's A Birth of a Nation shows Lincoln granting a pardon to fictional Confederate guerrilla Ben Cameron. Video sourced here.
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Refugees of the Sioux uprising, 1862. Image sourced here.
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Pardons for the SiouxDakota Native Americans known as the Santee Sioux had been promised reservations in the Minnesota Territory by the federal government in 1851. Yet upon the territory's admission into the Union, the federal government granted half of the settlement land designated for the Sioux to white settlers. Soon after, the land was cleared for settlement and the hunting and fishing that had for so long sustained the Sioux was now made near impossible. The Sioux were hungry and homeless and tensions ran high. In August 1862, a group of Sioux led by Chief Little Crow began an attack on the white settlement, killing five whites and burning the houses of white settlers. The attacks lasted into September, claiming several hundred white casualties before federal military forces subdued the Sioux in the battle of Wood Lake (2). Then followed the trials--most occurring without any semblance of due process--in which 303 Sioux were sentenced to hang for "murder and other outrages" (outrages meaning the raping of women) (3). A good number of the convicted and sentenced Sioux had surrendered upon the promise of clemency or had not even been involved in the killing at all (4).
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"I could not afford to hang men for votes."
Lincoln's administration is not remembered for its fair treatment of Native Americans. Indeed the human rights violations of Native Americans occurring under Lincoln are as egregious as they had been with previous administrations. Native American advocate and Episcopal bishop of Minnesota Henry Whipple was aware of this fact, and met personally with the president in an effort to ask him to consider the situation of the Sioux before approving the sentencing (5). On the basis of Whipple's pleas for clemency, Lincoln took to re-examining all 303 cases personally as the task of a presidential pardon was not able to be delegated. Only 38 of the original group were found to be guilty and were sentenced to death. Lincoln took the time to write out the names of each convicted Santee Sioux in order to guarantee that the right men were executed (6).
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On December 26th, 1862, 38 Santee Sioux men were hanged in the largest mass execution in the history of the United States. Image sourced here.
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Most Americans did not understand the President's preoccupation with the plight of the "barbaric" Sioux and wanted all 303 convicted dead. Lincoln's aides agreed that the president's actions amounted to political suicide (7). The effects of Lincoln's action were seen in 1864, two years after the hangings, when fewer Republicans were elected than before in Minnesota elections. A Minnesota senator told Lincoln that he could have gained a greater majority if he had hanged more Indians. Lincoln responded with a now famous retort, “I could not afford to hang men for votes” (8). Historian Hans Trefousse claims that Lincoln's handling of cases of the Sioux "was an act of courage and compassion as well as of justice. The political risks were great; yet Lincoln did not really hesitate” (9). When it came to the fate of the wrongly convicted, Lincoln viewed possible political repercussions as insignificant. His disdain of needless and mass killing and his desire for due process of law drove him to offer clemency for the Santee Sioux despite all the resulting criticism of his administration.
Pardons for Union Deserters
"He came to save that stricken soul, now waking from despair; |
"The Soldier in Our Civil War" (1893). Image sourced here.
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Though not as unpopular as his handling of the Sioux, Lincoln's pardons for Union deserters were received by the public and his administration with disapproval and frustration. As the war continued the death toll climbed and more desperate conscription efforts began. Soon, the Union army was flooded with soldiers with backgrounds and motivations different from those of the first volunteers. These men had been thrown into a world with which they had no experience. As a result, many left or escaped the fighting because they were often not aware that desertion was a violation of the military code and punishable by death. Some left to join other companies; some left after not being paid (10). Desertion was at an all time high and the Union cause was suffering.
"The Deserter's Fate." Image sourced here.
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Yet despite the backlash from generals and the public alike, Lincoln continued in his efforts to pardon those guilty of crimes of desertion or absence without leave. Congress' amendment of the basic draft act directed the president to issue the Proclamation Offering Pardon to Deserters, on March 11, 1865 (12). He called upon the act to put into effect a 60 day grace period for deserters to return to their posts and thereafter be granted an immediate and full pardon. This pardon would be granted on the condition that they serve the Union cause for the rest of their term of enlistment in addition to a period of time equal to that which had been lost by desertion (13). He also informed his generals in October of 1863 that he was "unwilling for any boy under eighteen to be shot" (11).
“Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feeling, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.” |
Throughout his presidency, Lincoln spent hours each day going through courts-martials, one by one, as the war raged, draft riots broke out, and the Union remained in disarray. He was often accompanied by his secretary John Hay and Judge Advocate General Holt. Holt describes Lincoln as he went through the courts-martial, saying, “[Lincoln] shrank with evident pain from even the idea of shedding human blood...all these many sentences impressed him as nothing short of ‘wholesale butchery.’ In every case he always leaned to the side of mercy. His constant desire was to save life” (14). Leonard Swett agreed that “[Lincoln] was purposefully in search of occasions to evade the law in favor of life” (15). Reasons Lincoln found to be worthy of clemency were “insanity” or “unsoundness of the mind,” the state of being “so diseased as to be unfit for Military duty,” and “other debilitating ailments.” With some, he even took the social and financial situation of the accused in mind, granting a pardon for a deserter after his mother's plea on behalf of her son. He cites the situation of the soldier in the grant for the pardon, stating that “She says she is destitute” therein explaining the necessity of the boy's survival in that he may provide for his mother (16). That being said, Lincoln was discriminating in his pardoning of Union soldiers. As Hay states, “He was only merciless in cases where meanness or cruelty was shown”. Lincoln did not pardon three time deserters or soldiers accused of rape. He showed no mercy to those that deserted and joined the Confederate army, or to bounty jumpers who deserted after collecting their payment (17).
"Execution of Five Deserters in the 5th Corps." Image sourced here.
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These acts of clemency, like the pardons for the Sioux, offered virtually no political advantage for Lincoln. The pardoning of deserters and soldiers guilty of violating the military code was believed to not only hinder to the war effort, but also promote disregard for the consequences of law. General Sherman was vocal in his disapproval of the president's pardons, suggesting in an 1864 letter to the Judge Advocate-General that 40 or 50 executions would "save a thousand lives" and admitted that he planned "to execute a good many spies and guerrillas ... without bothering the President" (18). Joseph Holt, Lincoln's Judge Advocate General, reasoned,
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...if you punish desertion or misbehavior by death, these men will feel that they are placed between two dangers and of the two they will choose the least. They will say to themselves, there is the battle in front where they may be killed, it is true, but from which they have a good chance to escape alive; while they will know that if they fly to the rear their cowardice will be punished by certain death" (19).
For Sherman, Holt, and many others, the crime of desertion was not to be taken lightly in that it could result in a weakening of the Union cause in a war which at that point had no clear outcome. With the stakes being this high, why should Lincoln show mercy to the coward?
Actions like these received cries of "dictator" and "coward" from the public, but what was not considered was the unprecedented influence the people in his administration and the American public had on Lincoln's exercising of the pardoning power. It was not always Lincoln who took the first step toward clemency. Often someone in the chain of authority would recommend a pardon, which Lincoln would then approve. Indeed, some of the biggest naysayer's of Lincoln's use of the pardon power eventually requested pardons for soldiers with whom they shared a personal or family connection (20). In civilian cases, Lincoln would seek the recommendation of his attorney general, Edward Bates (and then in his second term James Speed) (21). Lincoln also relied on public opinion in knowing when executive pardon was necessary. For instance, in all 358 pardons granted by the first four presidents of the United States "the plea of respectable citizens" four times in total. Lincoln's warrants, on the other hand, cite the plea of jurors 38 times. They also mention the support of a "large number of high respectable citizens" a total of 96 times (22). Lincoln's sympathies not only rested with the "simple-minded solider" but also with the American public in his reliance on public opinion in the granting of his pardons.
1. "Clemency Statistics." Clemency Statistics. U.S. Department of Justice, 4 Dec. 2015. Web. 15 Dec. 2015. <http://www.justice.gov/pardon/clemency-statistics>.
2. "Lincoln and the Sioux." Opinionator Lincoln and the Sioux Comments. The New York Times, 20 Aug. 2012. Web. 15 Dec. 2015. <http://opinionator.blogs.nytimes.com/2012/08/20/lincoln-and-the-sioux/?_r=0>.
3. Miller, William Lee. President Lincoln: The Duty of a Statesman p. 323. 1st ed. New York: Alfred A. Knopf, 2008. Print.
4. "Lincoln and the Sioux."
5. ibid.
7. Finkelman, Paul. "I Could not Afford to Hang Men for Votes—Lincoln the Lawyer, Humanitarian Concerns, and the Dakota Pardons," William Mitchell Law Review: Vol. 39: Iss. 2, Article 2. 2013. <http://open.wmitchell.edu/wmlr/vol39/iss2/2>
8. President Lincoln: The Duty of a Statesman. p. 325.
9. ibid. p. 326.
10. ibid. p. 335.
11. President Lincoln: The Duty of a Statesman. p. 350.
12. Lincoln, Abraham. "Abraham Lincoln: Proclamation 124 - Offering Pardon to Deserters." Proclamation 124 - Offering Pardon to Deserters. The American Presidency Project. Web. 15 Dec. 2015. <http://www.presidency.ucsb.edu/ws/?pid=70073>.
13. Love, Margaret Colgate. "The Twilight of the Pardon Power." The Journal of Criminal Law and Criminology 100.3 (2010): 1169-212. Print.
14. President Lincoln: The Duty of a Statesman. p. 333.
15. ibid. p. 337.
16. ibid. p. 350.
17. ibid. p. 338.
18. Ruckman, P. S., and David Kincaid. "Inside Lincoln's Clemency Decision Making." Presidential Studies Quarterly: 84-99. Print.
19. President Lincoln: The Duty of a Statesman. p. 334.
20. ibid. p. 345.
21. ibid. p. 317.
22. "Inside Lincoln's Clemency Decision Making."
2. "Lincoln and the Sioux." Opinionator Lincoln and the Sioux Comments. The New York Times, 20 Aug. 2012. Web. 15 Dec. 2015. <http://opinionator.blogs.nytimes.com/2012/08/20/lincoln-and-the-sioux/?_r=0>.
3. Miller, William Lee. President Lincoln: The Duty of a Statesman p. 323. 1st ed. New York: Alfred A. Knopf, 2008. Print.
4. "Lincoln and the Sioux."
5. ibid.
7. Finkelman, Paul. "I Could not Afford to Hang Men for Votes—Lincoln the Lawyer, Humanitarian Concerns, and the Dakota Pardons," William Mitchell Law Review: Vol. 39: Iss. 2, Article 2. 2013. <http://open.wmitchell.edu/wmlr/vol39/iss2/2>
8. President Lincoln: The Duty of a Statesman. p. 325.
9. ibid. p. 326.
10. ibid. p. 335.
11. President Lincoln: The Duty of a Statesman. p. 350.
12. Lincoln, Abraham. "Abraham Lincoln: Proclamation 124 - Offering Pardon to Deserters." Proclamation 124 - Offering Pardon to Deserters. The American Presidency Project. Web. 15 Dec. 2015. <http://www.presidency.ucsb.edu/ws/?pid=70073>.
13. Love, Margaret Colgate. "The Twilight of the Pardon Power." The Journal of Criminal Law and Criminology 100.3 (2010): 1169-212. Print.
14. President Lincoln: The Duty of a Statesman. p. 333.
15. ibid. p. 337.
16. ibid. p. 350.
17. ibid. p. 338.
18. Ruckman, P. S., and David Kincaid. "Inside Lincoln's Clemency Decision Making." Presidential Studies Quarterly: 84-99. Print.
19. President Lincoln: The Duty of a Statesman. p. 334.
20. ibid. p. 345.
21. ibid. p. 317.
22. "Inside Lincoln's Clemency Decision Making."