Inside Lincoln's Clemency Decision Making

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. …