Lincoln's Plan of Reconstruction

by Charles H. McCarthy

“At the threshold of the inquiry we are met with the objection that the States are now without officers of any kind legally elected, and that of themselves they are powerless to inaugurate any movement to set up a loyal government. It is said they have no officials to superintend the election, to count the votes, and grant certificates of election. However desirable these formalities may be, it has not been the uniform practice of Congress to require them.”

In the case of California, continued Mr. Henderson, the first election was called by the military order of a subordinate officer of the army, a delegate convention was chosen, a constitution was framed by that assembly and submitted to Congress. It was accepted as republican in form, and under it a State government was inaugurated that for fifteen years had been administered with the greatest success. The territory, he said, was wholly without civil authorities recognized by the United States. Congress had passed no enabling act, had prescribed no forms of proceeding, had failed to fix the qualifications of voters, had appointed no judges of election or other officers to count and certify the votes; yet the act, however informal, was ratified because the constitution on its face was unobjectionable in form, and it was believed that the people interested acquiesced in the government it established.

If the people of Rhode Island, added Mr. Henderson, had acquiesced in the government set up under Dorr, Congress and the Executive would have recognized it as legitimate. The Senator from Kentucky contended that although a majority of the legal and qualified voters of Louisiana should acquiesce in the new constitution Congress could not admit the State. In support of his view Mr. Henderson pointed to the State government of Missouri, which was the offspring of a movement purely revolutionary.

In the States whose representatives were seeking admission to Congress but one government asked recognition, and what if these organizations were of revolutionary origin?—the revolution was on the side of loyalty. Revolutionary governments had been accepted in time of peace—governments springing up in the midst of anarchy, without the sanctions of regularity; why, he asked, should they be rejected now when they were needed to protect the loyal inhabitants of the respective States and to aid the nation in vindicating its lost authority?

The assertion that on the face of these constitutions they were republican in form Senator Sumner denied. They did not follow out the principles of the Federal Constitution. This general answer was unsatisfactory, and Mr. Henderson said that the only question with him was how could he best get these States performing their legitimate functions in the Union again. If, as the Massachusetts Senator maintained, the act of secession took the States out, why could not the act of loyal men bring them back? If secession, he argued, was potent enough to take a State out, and that was mere revolution, why could not the loyal men perfect a revolution on the side of Government as well as rebels perfect a revolution on the side of secession, outrage and wrong?

The doctrine that secession took the States out of the Union, Sumner objected to have imputed to him. A subsequent remark indicated one ground of his opposition to the government of Louisiana. “If the loyal men, white and black, recognize it, then,” he declared, “it will be republican in form. Unless that is done, it will not be.”

When asked whether Congress could interfere with the right of suffrage in one of the States, Sumner evaded a candid reply, and concealed his meaning under these words: “It is the bounden duty of the United States by act of Congress to guarantee complete freedom to every citizen, and immunity from all oppression, and absolute equality before the law.” No government that does not guarantee these things, he added, can be recognized as republican in form according to the theory of the Federal Constitution, if the United States are called upon to enforce the constitutional guaranty.

Senator Henderson, interpreting this answer in the affirmative, observed that if under the guaranty clause the national Legislature could regulate the suffrage in the States, there was no limitation except the mere discretion of Congress. In support of this position he cited Madison in No. 43 of The Federalist, and of course had this part of the argument his own way, for the test of a republican form satisfactory to the Massachusetts Senator would leave few representatives in Congress.

Mr. Henderson denied that the admission of Senators and Representatives from these commonwealths would be a precedent for other States to demand recognition, even with the institution of slavery, thus bringing back the germs of a new rebellion against the Government; because in the constitutions presented involuntary servitude was abolished. With slavery remaining any restoration would be utterly useless. It was against union with the free States that the Southern people had taken up arms, and against restoration that they continued to use them. In that struggle they would employ every moral and material force, including the slave himself, stimulated by the boon of freedom, to resist the return of their States. Whatever the future might bring, it would fail to bring to the doors of Congress seeking admission a State constitution without a positive interdict of slavery.

To the objection that a majority of the people of these States were in rebellion and that to recognize the loyal minority would be to subvert the whole republican system Senator Henderson replied that if it were strictly true that a majority in a particular community “not only shall but must govern,” then a majority of legal voters in a State desiring to secede would have the undoubted right to do so. As no principle of the General Government authorized such action, it was not true, he said, that a majority of citizens in a State can govern themselves except in strict obedience to the Constitution of the United States. If a majority proved derelict and undertook to destroy the very Government of which the State is a part, it is right that the minority, who sustain the Government in its entirety, State and national, should institute government for their protection. He admitted that General Banks did a great many things for which there was no legal authority; but the question was whether this constitution was the will of the loyal men of Louisiana. If it was, their representatives had a right to seats on the floor of Congress.