Criminal Amnesty, State Courts, and the Reach of Reconstruction

It will be a great public good if the past can be forgiven and forgotten," wrote Justice Edwin G. Reade from the bench of North Carolina's supreme court nearly two years after the end of the American Civil War. Reade's desire for a collective forgetting of the greatest disruption ever to face his state stood at odds with subsequent history, as conflicts about the meaning of the Civil War dominated postwar politics for years and American historical memory for decades. Yet in one critical respect, the justice and his associates on the North Carolina court succeeded in achieving precisely that oblivescence. Armed with a remarkable piece of legislation known as the North Carolina Amnesty Act of 1866, the court handed down a series of decisions whose collective juridical impact placed the Civil War beyond the reach of criminal justice in the state. As interpreted by the North Carolina court, the pardon extended to Union and Confederate soldiers, deserters fighting against military authority, the Home Guardsmen and conscription officers who pursued them, men who acted on orders from their commanders during the war, and those who sought personal vengeance in its aftermath. From 1867 to 1872, the court applied the Amnesty Act broadly, as "acts of grace … to be construed liberally in favor of the subjects," to shelter any defendant who could show that his actions had even the most tenuous connection to wartime conditions or questions.¹

In its efforts to place an impermeable legal barrier between wartime actions and postwar consequences, the North Carolina Supreme Court confronted the same contentious and intricate questions about the war that it hoped the legislature's blanket, amnesty and pardon law would erase from the minds of individual North Carolinians. When did the Civil War end and peace dawn? At what point and under what conditions did settling local scores in the bitterly divided state mutate from a justifiable wartime action to a criminal act of assault or murder? Entangled in these fundamental questions about the condition of the state's social order were more intricate legal distinctions. Did the Confederacy ever exist as a government with legal jurisdiction over states and citizens, or was it a collection of rebellious people without legal standing? What powers, if any, did the state constitutional conventions mandated by Congress under the Military Reconstruction Acts of 1867 possess to revise existing state statutes?

These questions were not self-contained problems to be resolved episodically. Rather, the court's stance on these questions advanced a vision of postwar governance that empowered the judiciary to act as a bulwark against the expansion of rights-based citizenship that both Congress and broad swaths of the North Carolina populace demanded. The court upheld an all-white legislature's ban on prosecutions for war crimes, denied Republicans the opportunity to revisit that law when they remade North Carolina's constitution after the passage of the Reconstruction Acts, and retroactively established the validity of the Confederacy as a judicial entity. Taken together, these decisions denied postwar citizens the opportunity to redress grievances that they were never able to pursue under the state's wartime legal regime. Unionists, African Americans, and many northern Republicans had hoped that state criminal courts would be a valuable tool for remaking southern society after the defeat of the Confederacy, providing venues where all North Carolinians could seek the equal justice under law that provided the bedrock foundation of their ambitions for citizenship. Yet by using the 1866 Amnesty Act to keep the Civil War out of Reconstruction courts and by preventing subsequent legislative bodies from repealing it, North Carolina's supreme court placed powerful restraints on what a reconstructed citizenry might do to revisit past wrongs.

Unlike the much better known political amnesties extended by President Andrew Johnson on May 29, 1865, and again on December 25, 1868, and the Amnesty Act of 1872 passed by Congress and signed into law by President Ulysses S. Grant, the North Carolina Amnesty Act of 1866 concerned criminal liability rather than the restoration of rights to property and to...