Sibley and Pope desperately wanted to begin the executions immediately, but the sentences required presidential review. On November 7 Pope telegraphed the names of the condemned to Lincoln, at a cost of $400. The editors of the New York Times berated Pope for his profligacy and suggested the amount be deducted from his salary.

Lincoln responded three days later, asking Pope to send “the full and complete record of these convictions” and to identify “the more guilty and influential of the culprits.” Lincoln pointedly added, “Send all by mail.” Pope grudgingly complied but said, “The only distinction between the culprits is as to which of them murdered most people or violated most young girls. All of them are guilty of these things in more or less degree.

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Pope’s opinions were only the tip of the iceberg. As Lincoln began his deliberations, people on both sides of the issue bombarded him with letters and telegrams. Politicians, army officers, and clergy called on the president at the White House, each adding his take on the situation and offering advice. Lincoln dutifully and patiently listened. One of his own secretaries, John Nicolay, had been in Minnesota at the time of the conflict, and he told Lincoln that from “the days of King Philip to the time of Black Hawk, there has hardly been an outbreak so treacherous, so sudden, so bitter, and so bloody, as that which filled the State of Minnesota with sorrow and lamentation . . . .” Nicolay’s words must have struck a chord with Lincoln, for the president had been a militia volunteer during the 1832 Black Hawk War in Illinois and Wisconsin.

Governor Ramsey telegrammed Lincoln, “It would be wrong upon principle and policy” to refuse the executions. “Private revenge would on all this border take the place of official judgment of these Indians.” Two congressmen and a senator from Minnesota warned Lincoln that, should he grant clemency, “the outraged people of Minnesota will dispose of these wretches without law. These two peoples cannot live together.” A “resolution” from St. Paul residents declared, “The blood of hundreds of our murdered fellow citizens cries from the ground for vengeance . . . . The Indian’s nature can no more be trusted than the wolf’s.” Pope chimed in again as well, warning Lincoln that the “indiscriminate massacre” of all Dakota would occur if the president was too lenient. One man stood almost alone with a voice of moderation.

Bishop Henry Whipple, head of the Minnesota Episcopal Church, spoke often of the hypocrisy of federal Indian policies. In a newspaper editorial he wrote, “[I]f . . . vengeance is to be more than a savage thirst for blood, we must examine the causes which have brought this bloodshed . . . . Who is guilty of the causes which desolated our border? At whose door is the blood of these innocent victims? I believe that God will hold the Nation guilty.” Whipple was a cousin to Henry Halleck, Lincoln’s general-in-chief, so the bishop gained an audience with the president in November and urged clemency. Lincoln was impressed. “He came here the other day,” Lincoln said later, “and talked with me about the rascality of this Indian business, until I felt it down to my boots.

The timing of the Dakota crisis could not have been worse for the president. On a personal level, he and his wife, Mary, still grieved over the death, nine months earlier, of their 11-year-old son, Willie. On a political level, the administration faced one crisis after another. The war effort was in tatters. Major General George McClellan’s Army of the Potomac lay no closer to Richmond after the ill-conceived Peninsula Campaign and the bloody draw at Antietam. McClellan tolerated precious little advice from the president and sometimes even refused to meet with him. Finally the exasperated president dismissed the insolent general and replaced him with Ambrose Burnside, soon to be responsible for the Union disaster at Fredericksburg. As the blunders mounted, Lincoln also faced a challenge to his leadership from disgruntled cabinet members. Treasury Secretary Salmon Chase, perpetually jealous of Lincoln and furious that the president did not turn to him for military advice, sulked and plotted behind the president’s back. Lincoln knew of these designs and only tolerated them because Chase was a supremely able leader of his department.

Slavery issues preoccupied Lincoln as well. Somewhere between the bad tidings and bouts of depression the president managed to work on the final drafts of the Emancipation Proclamation, an executive order that would free the slaves in most of the South, even as he was being called upon to suppress the Dakota. The Minnesota business weighed heavily on Lincoln’s mind.

“Three hundred Indians have been sentenced to death in Minnesota by a Military Commission, and execution only awaits my action,” he wrote to Judge Advocate General Joseph Holt. “I wish your legal opinion whether if I should conclude to execute only a part of them, I must myself designate which, or could I leave the designation to some officer on the ground?” Holt answered, “I am quite sure the power cannot be delegated.” So Lincoln began reviewing the trials. The president first reviewed them as the expert lawyer he truly was. His political fortunes had often risen and fallen, but Lincoln’s brilliant legal career had remained a constant. Largely self-taught, he gained a formidable reputation as both a defense lawyer and court-appointed prosecutor known for his piercing cross-examinations and folksy, countrified manner. He continually asserted he was “not an accomplished lawyer,” but Lincoln appeared before the Illinois Supreme Court more than 200 times and made a small fortune as one of the principal lawyers for the Illinois Central Railroad. The president often utilized his legal skills when called upon to review the hundreds of Civil War military court verdicts appealed to him. By law and practice, there were basically two types of military courts at the time: courts martial and military commissions. Courts martial were comprised of a dozen officers and were generally held to try officers and enlisted men for dereliction of duty—sleeping while on sentry duty, cowardice, desertion, conduct unbecoming an officer—and for crimes such as rape and murder. Military commissions usually consisted of less than a dozen officers and were convened in areas where martial law had been declared, to try civilians accused of military crimes—spying, smuggling, conducting guerrilla actions against Union troops, and recruiting for the Confederacy.

The law allowed the convicted to appeal to Lincoln in most cases, and in capital cases it was a matter of right. In the midst of the havoc wrought by the war, Lincoln spent many hours of many days reviewing transcripts and receiving visits from the pleading family members of convicted men. Lincoln could easily see the defects of the Dakota trials.

Most importantly, the Dakota defendants had not been allowed representation by counsel. Defense lawyers would have raised objections to the jurisdiction of the commission in an area where martial law had not been ordered, as required by law. They would have questioned the impartiality of the five officers on the commission, all of whom fought against the Dakota and undoubtedly harbored ill will toward them. Defense lawyers would have cross-examined the commission’s witnesses, pointing out inconsistencies in their testimony and exposing their biases, particularly those—such as Godfrey—who “turned government’s evidence” and likely testified falsely in attempts to curry favor with the commission and save their necks. Without counsel, the defendants— already trapped behind a language and cultural barrier—did not have anyone to help them understand the proceedings, offer credible mitigating evidence, or develop and practice their own testimonies.

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