President Lincoln- The Duty of a Statesman

by William Lee Miller

  Black soldiers, understandably, used “Fort Pillow” as a battle cry and were reported to have killed captured Confederates. The discussion of the issue was then overwhelmed by the battle of the Wilderness. The only solution was to win the war, the passion for doing which was increased by this incident.

  EQUALITY AND LIBERTY: A NEW BIRTH OF FREEDOM

  LINCOLN GAVE what would prove to be his most enduring expression of his own (and, as he saw it, his country’s) commitment to equality in his dedicatory remarks at the Gettysburg cemetery on November 19, 1863. The powerful opening sentence of this incantatory masterpiece (of only eleven sentences, 275 words) simply took the key point for granted, by sheer patriotic assertion, in an affecting summary of the nation’s beginning: “Four score and seven years ago our fathers brought forth upon this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

  Matthew Arnold is said to have stopped reading in literary disgust at the word “proposition.” Nations aren’t “dedicated” to “propositions.” Perhaps he thought nations should be “dedicated” to kings and queens, to flags, to the ties of blood or soil or a long shared history, to something with more symbolic and evocative juice than a “proposition,” to which one gives rational assent, not dedication. Lincoln, however, American to the core, understood his nation’s distinctive self-definition, coming out of the springtime of the Enlightenment, in universal moral truths that we hold, in a creed. He had had the poetry in him to make it work: he wrote not of a moral ideal the nation sought, nor of a principle that it served, but of a proposition to which it was dedicated: all men, as Jefferson had written, created equal.

  The significance of reasserting that Jeffersonian phrase in November 1863 was to say that, for all the temporary contradictions in practice, in America’s original aspiration black persons are from the beginning and fundamentally equal to white ones.

  Lincoln would then end his brief remarks, after eloquent recognition of the brave men who consecrated the battleground, with a call to a high resolve, “a new birth of freedom.” A more inclusive freedom was to be born: a freedom linked to the equality to which the nation was dedicated.

  THE FOLLOWING APRIL, in a much less elegant speech at the Baltimore fair—the same speech in which he inserted his remarks about Fort Pillow—Lincoln spelled out the most elementary requirement for a new birth of freedom. “The world has never had a good definition of the word liberty,” he told the Baltimore fairgoers, grandly sweeping aside acres of past philosophical effort, “and the American people, just now, are much in want of one.”

  We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor.

  Here are two, not only different, but incompatable things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names—liberty and tyranny.

  Lincoln perceived the precarious one-sidedness in the profound value of “freedom”: its close connection to power, both freedom and power meaning something like the ability to do as one wishes to do. So the question regularly arises about how doing as one pleases impinges on others. The correction is for a nation conceived in liberty also to be dedicated to the proposition that all men are created equal, so that there is a balancing that prevents one man’s liberty from becoming another man’s tyranny. Lincoln had a little fable:

  The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails to-day among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty.

  Maryland, a Union state not covered by the Emancipation Proclamation, was just then moving to hold a convention at which it would be voted, on June 24, to amend the state constitution to end slavery. Lincoln referred to these positive developments in the ending of his little fable: “Recently, as it seems, the people of Maryland have been doing something to define liberty; and thanks to them that, in what they have done, the wolf’s dictionary, has been repudiated.” By tying it practically to equality, they had begun to define “a new birth of freedom.”

  CHAPTER SIXTEEN

  The Benign Prerogative to Pardon Unfortunate Guilt

  TO SOFTEN THE RIGOR OF THE GENERAL LAW

  AS THE RESOUNDING CHORDS of giant presidential choices over war and treason and slavery and disunion reverberated across the land, there would soon begin to be heard a counterpoint in another key, a sweet-sad little melody of grace notes in the higher moral registers. This sequence of presidential choices would deal one by one with the fate of individual human beings whose lives had been tossed about by some deed they had done, or were alleged to have done, in the terrible fog of war.

  As we have seen in the cases of Nathaniel Gordon and David Wright, in the same paragraph of the Constitution (Article II, section 2, paragraph 1) that made the president commander in chief, the framers made this quite definite grant: “he shall have the Power to grant Reprieves and Pardons for Offenses against the United States.” In those two cases he disappointed the supporters of the condemned men, but in many other cases he would extend a mercy that would become part of his legend.

  One might be a little surprised that the celebrated framers of this new “republican” government should have included, among the few explicit powers they extended to the “executive,” an absolute, unchecked, unreviewable, personal power to grant pardons, commutations, and reprieves. Many of the sources upon whom the American framers drew did not think a republic would, or should, give over to one individual the power to alter the results of the legal system. Pardons, to them, smacked of kings and priests, of favors, whims, and special dispensations.

  One who favored pardons precisely because the practice had a royal loftiness was Blackstone, the great English codifier of the common law, much read in the American colonies, whom Lincoln himself read in order to make himself a lawyer.*56 In his famous Commentaries on the Law of England, in 1769, Blackstone was quite explicit that pardoning power belonged to kings. “This is indeed,” he wrote, “one of the great advantages of monarchy in general, above any other form of government; that there is a magistrate, who has it in his power to extend mercy, whenever he thinks it is deserved: holding a court of equity in his own breast, to soften the rigour of the general law.”

  When Blackstone wrote of “holding a court of equity in his own breast,” he was thinking of a royal breast, hedged with divinity, not the untutored breast of some total commoner of dubious family from a remote province, tossed up by an accident of popular election.

  In fact, Blackstone specifically wrote, “In democracies this power of pardon can never subsist, for there nothing higher is acknowledged than the magistrate who administers the laws…[I]n monarchies the king acts in a superior sphere; and, though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it.”

  But these American “presidents,” for whom nobody claimed any aboveness (at least after George Washington was gone), would come to be wholly engaged in the “disagreeable” and “invidious” parts of governing. Particularly the sixteenth president: Lincoln would certainly not in his own time be looked up to as “the fountain of nothing but bounty and grace,” as Blackstone said was the case with graciously pardoning kings.

  The Amer
icans in their revolution were separating from and repudiating the kind of lofty royal superiority that Blackstone, writing in King George’s England, was rhapsodizing about. The greatest pamphleteer of the American Revolution wrote that an honest man is worth all the crowned ruffians who ever lived. Benjamin Franklin, that original American, is said to have remarked that calling King George III of England “the Royal brute” was unfair to brutes.

  The French Revolution, in its first spasm of enthusiasm, would sweep away all provision for pardoning. But the Americans did not do that. They were perhaps never as purist, tidy, or utopian as were the French revolutionaries and Continental philosophers, and by the time the Americans wrote their Constitution, they had had thirteen scrambling years of experience under the Articles of Confederation, which provided for no executive head. They were more realistic about human nature and the flaws in social systems; where the French constitution-makers provided for no process of amendment, the Americans had provided for amending their Constitution and started doing so right away. Perhaps the provision for pardons was a flavoring of their republican idealism with a dash of realism.

  In any case, they included in their constitutional system an executive with the power to pardon. Hamilton produced in Federalist 74 this most central statement from an American Founder about the “benign prerogative” of the pardon power: “The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Seventy-two years and fifteen presidents after Hamilton wrote his paragraphs, there would come to the executive office a man who, faced with the nation’s greatest crisis, would repeatedly hold “a court of equity in his own breast, to soften the rigour of the general law.”

  There he sits, with the papers of a particular case and the fate and often the life of a convicted person resting on his decision. The pardoning power of presidents is a point in the formal system at which the particular characteristics of a single case on the one side and the moral understanding of a single individual on the other can determine the result—a point at which a president’s moral understanding may be revealed with a rare clarity.

  OFFENSES AGAINST THE UNITED STATES

  “OFFENSES AGAINST THE UNITED STATES” included everything that federal law covered—and the coverage of federal law was just then undergoing a gigantic enlargement. You might think that a president in the midst of a great war should not have to decide whether Herman Kirchner, restaurant owner in Washington, should be excused from paying a fine of twenty dollars, imposed upon him for allegedly selling spirituous liquors to a soldier. (Kirchner claimed that all he did was to send brandy to a wounded soldier in a neighboring house.) Or whether John Knowles and his brother should be pardoned, as their mother pleaded, for their alleged crime of assault and battery upon a man whom they thought had insulted their sister. Lincoln, like other presidents, was confronted with petitions on behalf of those found guilty of counterfeiting and larceny and embezzlement and mail robbery and murder and rape and arson, whose cases for some jurisdictional or substantive reason fell under the federal rather than the state courts.

  Often someone in the chain of authority would recommend clemency, which then Lincoln would endorse. Lincoln would often ask, in civilian cases, for the recommendation of his attorney general, Edward Bates or (at the end of his presidency) James Speed. Sometimes the recommendation made the case an easy one. In a civilian case in 1863, Jacob Varner of West Virginia was sentenced to three years’ imprisonment for robbing the mails, but even members of the jury that found him guilty signed a petition explaining that Varner was an “ignorant man” who had been persuaded by “designing politicians” that he had an allegiance to the state superior to his duty to the U.S. mail. On June 1, 1863, Lincoln the humorist pungently explained his decision: “As the Judge, Jury, Marshall, District Attorney, and Postmaster General join in asking a pardon in this case, I have concluded to grant it.”

  Lincoln thus would find in these cases, as everywhere else, occasions for wit. Perhaps he should have restrained himself from responding—on May 27, 1863—when one Robert B. Nay came to the White House to discuss his pardon: “I will not say thee ‘Nay.’”

  In some of the requests for pardons, justice needed no great boost from mercy: President Lincoln would correct the operations of a lower body with a more careful reading of what was just. Thus, for example, on October 10, 1864, he would decide: “I do not think a man offering himself a volunteer when he could receive a bounty & being rejected for disability should afterwards be compelled to serve without bounty as a drafted man. Let this man be discharged.”

  Sometimes he could appeal to the elementary logic of a situation, and to elementary human nature, as moral reasoning to determine what was just, as in a case of alleged racketeers: surely, if you were going to commit fraud in a matter involving more than a million dollars, you would manage to extract for yourself more than a mere one hundred dollars.

  Lincoln pardoned more than three hundred “nonmilitary” offenders, more than his two predecessors combined. That increase was a side effect of the war, but cases coming from the civilian courts were now to be radically surpassed and eclipsed, in number and in significance, by pardon cases that arose from the military justice system.

  The largest single episode in which Lincoln called upon the pardon power did come from a military commission, but it did not arise from the war—that is, not from the American Civil War. We may cite this case, the sentencing of 303 Sioux (or Dakota) Indians in Minnesota in the fall of 1862, to examine and disagree with a misgiving that some had about Lincoln’s mercy.

  OUT OF SIGHT

  LINCOLN WOULD acquire his reputation for a quite unusual tenderheartedness during his lifetime, and it would be expanded in the legend after his death. But a provocative qualification would come from an important source: his law partner and eventual biographer—and source for everyone else’s Lincoln biography—William Herndon:

  Mr. Lincoln was tender hearted when in the presence of suffering or when it was enthusiastically or poetically described to him: he had great charity for the weaknesses of his fellow man: his nature was merciful and it sprang into manifestation quickly on the presentation of a proper subject under proper conditions: [but] he had no imagination to invoke, through the distances, suffering, nor fancy to paint it. The subject of mercy must be presented to him.

  The time when Herndon knew Lincoln well was before he was president, before the hard choices and vast consequences of wartime. But his proposed qualification about Lincoln’s tenderheartedness was picked up and made more stark by an early twentieth-century biographer, William Barton, who in general would be rather dismissive of Lincoln’s larger generosities:

  Lincoln was a man of deep sympathy, but his sympathy had a certain well-defined limitation. He felt sympathy where he could see or visualize the personal sorrow that was caused by an act or condition. What was out of sight was more or less out of mind.

  Neither Herndon nor Barton gives any example of suffering at a distance that Lincoln had insufficient imagination to grasp, but the distinguished twentieth-century Lincoln scholar Richard Current, who picked up this point with one hand after he had set it aside with the other, does give an example: Lincoln’s “creative interest in new weapons.” Current listed breech-loading rifles, a “coffee mill gun that was an ancestor of the machine gun,” mortars, an explosive bullet, and incendiary shells.

  But was that persistent interest a sign of Lincoln’s failure to comprehend the distant suffering that those weapons would cause? It was the result, surely, of the intersection of his lifelong interest in mechanical devices with his determination to prosecute the war relentlessly to the earliest conclusion.

  In the summer and fall of 1862 Lincoln decided on a case in which he did exactly what Herndon and Barton said he did not do. He used his imagination to invoke the suffering of those far away from him and different f
rom him—out of sight: the Sioux warriors of Minnesota, many of whom at least were unjustly condemned.

  These Minnesota Indians were remote from Lincoln and removed from his experience, but he also had a family history with other Indians that might have made another man bitter. His paternal grandfather, also named Abraham, had been killed by Indians, as the famous grandson himself would tell it, “not in battle, but by stealth, when he was laboring to open a farm in the forest” in Kentucky. That event was an important cause of the poverty of Thomas Lincoln, who “was but six years of age” when his father was killed. Thomas Lincoln, the youngest son, “even in childhood was a wandering laboring boy, and grew up litterally [sic] without education.” That, and “the narrow circumstances of his mother,” led to the upbringing in poverty of his son, Abraham.

  Abraham Lincoln had, in addition to this potentially embittering family memory, the typical experience of a frontiersman. He joined the militia in 1832 when he was twenty-three to fight Indians (although he never actually fought any) in the Black Hawk War.

  But Lincoln never shared the frontiersman’s categorical hostility to Indians. He made his experience in the Black Hawk War into amiable, self-deprecating jokes. There is no record of his even engaging in a skirmish with the Black Hawk, let alone killing or wounding any, and his campaign biography in 1860 by William Dean Howells, which he approved, said that during the Black Hawk War he saved the life of an old Indian who had wandered into camp thinking he was protected by a safe conduct pass that he had from a white man. The men in Lincoln’s company thought they would seize the opportunity to kill an Indian, but Lincoln stopped them. William G. Greene, Lincoln’s helper in Denton Offutt’s store and a fellow volunteer in the militia, independently told the same story. Another of Lincoln’s men in the militia, Royal Clary, provided further details when he later recalled the incident to Herndon: “Lincoln jumped between our men & the Indian and said we must not shed his blood—that it must not be on our Skirts—some one thought Lincoln was a coward because he was not savage: he said if any one doubts my Courage Let him try it.”