The president could also see how the trials’ rapidity prevented a full and fair analysis of the facts. The weight and impact of evidence simply could not be properly processed in a few minutes, especially in capital cases with their ultimate stakes. Undoubtedly the brevity of the trials resulted from the absence of defense counsel. The president could also see how the commission convicted many men with insufficient evidence. Lincoln, a master politician, also reviewed trials with a political perspective. On December 1 he gave the requisite nod to those who had pressured him against clemency by telling Congress, “The State of Minnesota has suffered great injury from this Indian war.” While he did not tip his hand about his imminent decision, it was a signal he would offer some satisfaction there. Yet he also knew how the rest of the world, especially Britain—still considering whether to recognize the Confederacy as an independent nation—would perceive the mass execution of some 300 men. As Secretary of the Navy Gideon Welles noted in his diary: “When the intelligent Representatives of a State can deliberately besiege the Government to take the lives of these ignorant barbarians by wholesale… , it would seem the sentiments of the Representatives were but slightly removed from the barbarians they would execute.”

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Nevertheless, Lincoln’s compassion played the largest role in the predicament. In their lengthy debates over Civil War military court verdicts, Judge Advocate Holt often urged execution. Lincoln usually demurred, saying, “I don’t think I can do it,” or “I am trying to evade the butchering business lately.” Holt said Lincoln’s “constant desire was to save life.” John Hay, the other of Lincoln’s personal secretaries, wrote in his diary, “I was amused at the eagerness with which the President caught at any fact which would justify him in saving the life of a condemned soldier.” Statistics confirm these observations. In his review of death sentences for desertion, Lincoln disagreed with the trial courts at a rate of 75 percent initially, increasing to 95 percent by the middle of the war. He rarely approved execution for cowards because “it would frighten the poor devils too terribly,” and he never allowed execution for those who slept on sentry duty. In reviewing the death sentences of civilians handed down by military commissions, Lincoln disagreed with 60 percent of the trial courts. He was only merciless in cases involving cruelty or sex offenses.

Any death sentence for rape or murder, whether from courts martial or commission, stood a 50- to-80 percent chance of being upheld upon presidential review. Lincoln issued his decision in the Dakota cases on December 6, 1862. He later explained his rationale to the Senate: “Anxious to not act with so much clemency as to encourage another outbreak on the one hand, nor with so much severity as to be real cruelty on the other, I caused a careful examination of the records of trials to be made, in view of first ordering the execution of such as had been proved guilty of violating females. Contrary to my expectations, only two of this class were found. I then directed a further examination, and a classification of all who were proven to have participated in massacres, as distinguished from participation in battles.” Lincoln’s order to Sibley—in his own handwriting—allowed the execution of only 39 of the 303 condemned Dakota.

Of these, 29 had been convicted of murder, three for having “shot” someone, two for participating in “massacres,” and one for mutilation. As Lincoln told the Senate, only two had been convicted of rape. Curiously, the president allowed the executions of two men who were convicted merely for participating in battles. Lincoln spared Godfrey, as the military commission requested, and two weeks later spared another man due to newly discovered exculpatory evidence. “The other condemned prisoners,” Lincoln ordered Sibley, “you will hold subject to further orders, taking care that they neither escape, nor are subject to any unlawful violence.” With his “massacres” versus “battles” standard, Lincoln offered clemency to 265 of the condemned Dakota, or 87 percent of them. Some analysts have argued that jurisdictional defects in the proceedings—namely, that the commission lacked authority because martial law had not been declared, and that the Dakota were not tried for military-type violations, but the common-law crimes of rape and murder—nullify Lincoln’s well-intentioned efforts. While these arguments are probably true in theory, the reality of the situation was different.

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