Lincoln's Plan of Reconstruction

by Charles H. McCarthy

He further objected that Banks had no authority to call the convention, for the constitution of Louisiana could be lawfully amended in only the mode pointed out by itself. The President’s proclamation, he added, would allow only those to vote who were qualified electors under the fundamental law of the State; those in the army and navy were not, but General Banks in his ukase of February 13, 1864, allowed them to participate in the election.

He also invited attention to the action of the Department Commander in designating provost marshals to take care that the polls were properly opened, in the absence of the sheriffs, and that suitable persons were appointed judges of election and so forth. Of the 11,414 votes he asserted that 808 were cast by soldiers who under the President’s proclamation were not legal voters. The fact, added Mr. Powell, that General Banks after the inauguration of Hahn as governor continued to issue proclamations shows that the civil was controlled by the military authority.

Passing on to a discussion of the statement of Banks before the Committee on the Judiciary that the military did not interfere in the election of February 22, Senator Powell quoted the following passages from a proclamation of the Department Commander:

Those who have exercised or are entitled to the rights of citizens of the United States will be required to participate in the measures necessary for the reëstablishment of civil government.... It is therefore a solemn duty resting upon all persons to assist in the earliest possible restoration of civil government. Let them participate in the measures suggested for this purpose. Opinion is free and candidates are numerous. Open hostility cannot be permitted. Indifference will be treated as a crime, and faction as treason.

“Talk to me,” exclaimed Mr. Powell, “of freedom of election under such military orders! Why, sir, there was but one free man, in my opinion, in all Louisiana at that time, and that was Major-General Banks; and I do not know that he was free, for he was serving his master at the White House.” The fundamental law there was martial law, which is but the will of the commander-in-chief, and under that law he could have beheaded them if they did not vote.

From beginning to end, he continued, the coercive finger of the military was engaged in the establishment of that government. Under the various proclamations even Unionists, men who had always been loyal, could not vote unless they took the oath required in the President’s proclamation. There was a large class of loyal men in Louisiana, he said, who refused to take that oath, for there had been presented to the Judiciary Committee an earnest protest signed by Thomas J. Durant and thirty-one others, influential Union men of that State, against the admission of Senators and Representatives and against counting its electoral vote. Those Senators, he added toward the conclusion of his remarks, who only a few days before opposed the counting of Louisiana’s electoral vote should now vote against the resolution acknowledging the government which appointed the Senators that are claiming seats.[^[405]]

Sumner and Davis referred to the resolution as a shadow. To this Mr. Doolittle replied that the vote of Louisiana might be necessary to secure the constitutional amendment, and that the new constitution of that State had struck the shackles from 90,000 slaves not reached by the Emancipation Proclamation.

Mr. Henderson, who favored the resolution, secured the floor, and observed, among other things, that Louisiana and Arkansas did not claim that they were yet strong enough to maintain their governments without the military aid of the nation; but neither was Maryland, West Virginia, Kentucky or Missouri; even Ohio, Indiana or Illinois, he said, could not without national assistance maintain their State organizations for sixty days against the Confederate armies.

“If we would have State governments,” said Mr. Henderson, “we must begin somewhere and at some time.” It was nonsensical, he argued to talk of restoring the Union, while keeping the loyal people in those States for all time to come under military domination. “We must declare the right in Congress,” he added, “to make and establish these governments for the States, or permit the President, under military law, to set them up, or we must recognize such as the loyal people may set up for themselves.” If, as Madison thought, Congress cannot make them, but can only guarantee such as already exist and are found to be republican in form, it must be left with the President, under his power as the head of the army, or to the people of the respective States. If left entirely with the President he might by military force impose upon the State a constitution against the wishes of both the loyal and disloyal. The Senator frankly admitted that neither House would be under any obligation to receive members sent from a State so constituted.

“But,” he went on to say, “if the people—the loyal masses, whether a majority or a minority of the whole voting population as formerly known—participated in its creation and acquiesce in the revival of the State government, the case though inaugurated by the President in my judgment would be very different. According to the theory of our Government, and its practice in all its past time in analogous cases, it would seem that whether Congress or the President inaugurated the proceeding, the constitution can only receive its validity and authority from the approval or acquiescence of the people to be affected; and that brings me to consider how the people in the seceded States shall revive their governments, and who are the legally qualified voters for that purpose in these States.