Presidential Pardons II (1863-1868)
Bill Long 9/12/07
Lincoln's Two Amnesty Proclamations from 1863 and 1864
Just as Abraham Lincoln waited until a propitious time (the Union victory at Antietam in Sept. 1862) to announce the Emancipation Proclamation, so he waited until he felt the tide was largely turned in the war to issue his first amnesty/pardon proclamation. In addition, this amnesty proclamation was coupled with a plan for reconstruction. Thus, amnesty and reconstruction would always go hand in hand in Lincoln's mind. The first proclamation was made on December 8, 1863. In order to get people to resume their allegiance to the United States, Lincoln proclaimed:
"I Abraham Lincoln..do proclaim, declare, and make known to all persons who have, directly or by implication, participated in the existing rebellion, except as hereinafter excepted, that a full pardon is hereby granted to them and each of them with restoration of all rights of property, except as to slaves and in property cases where rights of third parties shall have intervened, and upon the condition that every such person shall take and subscribe an oath and thence-forward keep and maintain such oath inviolate..." (Quoted in Dorris, Pardon and Amnesty under Lincoln and Johnson, 34).
Before getting to the actual words of the oath, a few points should be made. Note that the person who is seeking pardon will not have slaves (an example of property) restored to them. Other legislative acts said that no compensation for loss of slaves would accrue to former slaveholders. The meaning of "rights of third parties" in property issues simply means that where title has passed legitimately to other parties--bona fide purchasers-- the person applying for pardon didn't receive back that land.
Then there is the oath. It is quite wordy, but let's hear it:
"I ______________ do solemly swear, in the presence of Almight God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States and Union of the States thereunder; and that I will in like manner abide by and faithfully support all acts of Congress passed during the existing rebellion with refernce to slaves, so long and so far not repealed, modified, or held void by Congress or by decision of the Supreme Court...(another similar phrase followed regarding "proclamations of the President")...So help me God!"
We can't leave this part of the law without realizing that Lincoln had six categories excepted from the proclamation. These were
"(1) all who are or shall have been civil or diplomatic officers or agents of the so-called Confederate Government; (2) all who have left judicial stations under the United States to aid the rebellion; (3) all who are or shall have been military or naval officers of said so-called Confederate Government above the rank of colonel in the army or of lieutenant in the navy; (4) all who left seats in the US Congress to aid the rebellion; (5) all who resigned commissions in the army or navy..and afterwards aided the rebellion; and (6) all who have engaged in any way in treated colored persons, or white person in charge of such, otherwise than lawfully as prisoners of war."
How was this tied to Reconstruction? Well, in the same proclamation which required this oath there was a provision which said that when, in any state,
"a number of persons, not less than one-tenth in number of the votes cast in such state at the Presidential election of 1860,"
had taken the amnesty oath and qualified as voters under the election laws pertaining prior to the state's act of secession, such persons and no others might re-establish a loyal state government.
The 1864 "Revision"
Under the terms of this provision, four states would, before Lincoln's death, be "on the way" to Reconstruction: Tennessee, Louisiana, Arkansas and Virginia. Thus, when Andrew Johnson gave his "big" proclamation on May 29, 1865 and used North Carolina as his "model" for his pardon planning, he only appointed Provisional Governors for NC and then the other six Confederate States (TX, AL, MS, FL, GA, SC) over the course of June and July 1865. The other states were pursuing thier "Lincoln" plans for reconstruction.
But we haven't finished yet with Lincoln's policy or one moving example of how he used the pardon. The 1863 proclamation received lots of comment, of course, with the South declaring that Lincoln was trying to "buy off" traitors and the North complaining that he was being too lenient with his 10% plan, but in March 26, 1864 he altered the plan to include a seventh exclusion: (7) those "persons..in military, naval, or civil confinement." In addition, the March 1864 proclamation gave the means by which people could obtain pardon. Those in the excluded classes might:
"apply to the President for clemency, like all other offenders," and they would "receive due consideration."
The 1864 proclamation also dealt with all those questions that lawyers and practical people had thought up in the mean time (like who is the one before whom you take your oath of loyalty? did those who were loyal in disloyal states have to take an oath of loyalty? etc.). Answers to these questions would be fun to discuss, but also would take a lot of time now. Let's move on.
Time also doesn't allow consideration of the July 1864 Wade-Davis Bill, a Congressional attempt to make up for the "mercy" of Lincoln by imposing much more severe strictures on entering back into the Union for Confederates. Lincoln "pocket vetoed" this bill, to the chagrin of Radical Republican leaders, and it died in his pocket.
Let's just move on to the next essay, which tells a story of one of Lincoln's pardons.
Copyright © 2004-2008 William R. Long