Presidential Pardons I (1863-1868)
Bill Long 9/12/07
Lincoln First (1863-64)*
[*For some essays on the pardon strategy of President Andrew Johnson, see these essays.]
The story of the Civil War, Reconstruction and the passage of the Civil War Amendments to the US Constitution (13th-15th) is not complete without understanding the philosophy behind and nature of Presidential pardons handed down by Lincoln and Johnson from the time of Lincoln's first amnesty proclamation (Dec. 8, 1863) until the last (of four) amnesty proclamations of Andrew Johnson on Dec. 25, 1868. Though the subject is all but ignored in history books and even in more technical monographs of the Civil War era, these Presidential pardons give us a window into not only the philosophy of the Presidents on "reconciliation" or "restoring" relationships with the South but also into the ways that pardon, used so effectively by Abraham Lincoln, proved to be the beginning of Andrew Johnson's undoing.
What is striking to me about the issue of granting pardons or commutations to Southerners after the Civil War is that Lincoln and Johnson really reflected a similar philosophy of pardon and, in fact, Johnson was at first more strict in granting them than Lincoln. In the end, however, Johnson was roundly criticized for not "sticking it" to the South more than he did. In other words, pardon in the hands of Lincoln only raises that estimable man in our judgment; pardon in the hands of Johnson, who pursued a substantially similar course, has led historians to scorn and belittle Johnson. Is this just a prejudice of historians or had situations changed so considerably between Lincoln's and Johnson's presidency that Johnson made a huge tactical mistake in granting widespread pardons? Thus, the study of Presidential pardons in this period can give us a special window into the vagaries of politics, the changing nature of historical circumstances and the role of personality in shaping history.
A Historical Framework for Understanding Pardons
Well, before we can answer this question, we need to know something about the legal framework and historical unfolding of what one might call the "institution of the pardon." Presidents have the power, under Art. II, Sec. 2 of the US Constitution to:
"grant reprieves and pardons for offenses against the United States, except in cases of impeachment."
Though this power at first seems quite broad (it allows a "reprieve"--i.e., not suffering the punishment of an offense--as well as a "pardon"--i.e., not experiencing either guilt or punishment), it is confined to offenses against the US. That is, a person who violated a state statute, criminal or civil, would not be able to appeal to the President for reprieve or pardon.
During the Civil War many statutes were passed which allowed punishment and confiscation of land of people who fought against the Federal government on the side of the Confederacy. The most important law to this effect was the Second Confiscation Act of July 17, 1862. It assessed penalties for treason (not less than five years in prison or $10,000 fine, with the maximum penalty being death) and for insurrection against the US (not exceeding $10,000 fine or 10 years in jail), as well as the liberation of his slaves and the confiscation of his property. But, significantly, the Congress also approved Sec. 13 of the bill, which provided as follows:
"That the President is hereby authorized, at any time hereafter, by proclamation, 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."
This, then, provides the legal framework and basis for Presidential pardon in the Civil War Era. Pardon was the grant to an individual, while amnesty was a grant to a class of people. Now, according to the legislation, we see not only that the President has the broad Constitutional powers as given above, but that he also has the ability to pardon or to give exceptions to pardons as he pleased. The italicized words are important, because they formed the basis for how both Presidents Lincoln and Johnson worded and limited their amnesties. They would give a blanket amnesty to all people in rebellion or who had been in rebellion against the Federal Government, and then would "except" certain classes of people. The upshot would be that these excepted classes would not be granted amnesty--unless there was a further procedure to enable that to take place.
The next essay discusses Lincoln's amnesty proclamations.
Copyright © 2004-2008 William R. Long