Lincoln's Plan of Reconstruction

by Charles H. McCarthy

Though he declined to discuss the question whether a State by omitting to send Representatives and Senators to Congress would on that account cease to be a member of the Union, he gave it as his opinion that mere failure to be represented in Congress would not be followed by such consequences; but if a State not only refused to participate in Federal legislation but went farther, and as a political community made war upon the General Government, he declared that “it would be folly, madness, to say that the State was not our enemy in every sense in which that term can be employed to describe hostile relations between independent communities.... No one will pretend that such a community is in the Union in fact, for that would be to make an admission and in the same breath to contradict it. De facto, such a community, and, if it be bounded by State lines, such a State, is as completely out of the Union as is Canada or Mexico, from the moment it assumes the attitude of hostility until it is subdued and conquered by our arms, or until it voluntarily lays down its arms, ejects its hostile government and returns in fact to its once friendly sentiments and friendly relations to the Federal Government.”

“Loyalty,” continued Senator Howard, “thus becomes the final test in solving the question, what is a State in the Union? If a State by its overt acts has shown a want of this friendship, it is no longer in the Union de facto, and cannot be treated as if it were. The Supreme Court, acting upon the soundest principles of public law, have decided the waging of war by a State, although acting under an illegitimate and revolutionary government, renders her territory enemy’s territory, and the people there resident enemies of the United States, in the sense of the laws of war. And their decision could not have been different.”

The State, he argued further, was in fact, though wrongfully, out of the Union because its actual government was disloyal and treasonable. Out of it because unsubdued rebellion made it for the time being an independent though unrecognized nation on the earth’s surface, throwing off its allegiance to its paramount Government, and assuming by the sword to assert its separate nationality.

“But we are at war with the rebel States, and are told ... that the Government, so far at least as the rebel States are concerned, is under some peculiar constitutional restraint by which its hands are tied; that we are prohibited from ‘subjugating’ those States; that all we can do, under the Constitution, is to break up the military array of the rebels, disperse their armed bands, take away their arms, and do that very indefinite duty, restore order; that thereupon our task is ended and the rebel States have a constitutional right to come back into the Union and participate in the enactment of Federal laws and the conduct of the Federal Government. And we are menaced both in Congress and out with terrible retributions if we conquer or attempt to conquer, if we subjugate or attempt to subjugate, the rebel States. It is admitted by these our critics that in an international war ... we should have all the rights and powers of other independent nations, and might rightfully conquer our adversary, ... that we might make a complete conquest of his people and his territory....

“Now, it is lawful to wage such a foreign war, for the purpose of effectuating such a complete conquest, and of course lawful to attain it; ... lawful to substitute the political authority of the United States for that of a hostile foreign nation;” otherwise, he argued, the war could not be a successful one; hence in a war with a member of the Union the United States could substitute for the authority of such hostile commonwealth its own authority. There was no difference between the two cases. The former actual hostile government should be supplanted by the Federal Government. No other government had a right to give the law. Had the conquered rebel people that right? No; for that would be to allow them at once to expel their conquerors by a popular decree, and to deny the supremacy of the Federal Government which had subdued them. Had the old State government, he asked, the once loyal government, the right to govern the conquered people? No; there was no such government. It had long since ceased to exist. “In fact, there is no government there, none at all, which can for a moment be recognized or permitted by the United States, as the party now holding the actual mastery of the country; and like every other case where the possession of a country has arisen from the use of superior force, the will of the conqueror is the law—that is, the will of the United States expressed, in the absence of acts of Congress, by the Commander-in-Chief of the Army, but by the acts of Congress after Congress has spoken.

“... No one will deny that we have a right to subdue by arms and to reduce to quietude and submission a rebel State, that is, the people of a State in insurrection. But how absurd to make this concession, and at the same time to deny to us the constitutional power to occupy and hold the territory and its people in our military grasp—an occupation just as necessary to the end in view as the firing of cannon, the charging of cavalry, or any other operation in the field.

“... The true objects of the war ... are the suppression of the rebellion, the reëstablishment of the original Federal authority within the State, and the revival of the loyalty of the people of the State as the sole foundation and condition of all its civil rights as a State of the Union and of the right of its people to be treated as friends and not as enemies. Although the United States have the full and complete right which conquest gives, for the purpose of subjecting these domestic enemies to the exercise of the powers granted by the Constitution to Congress, and for the purpose of restoring to the body-politic its vital blood, loyalty to the Government, yet those purposes, those distinct ends, are without doubt limits beyond which we cannot go. We are restrained by the manifest objects for which the national Government was formed; but restrained by no particular clause of the Constitution. The instrument contains no such clause, and the limitation and restraint are of precisely the same nature as those which any other government is under in subduing an insurrection of its own subjects or citizens; the plain object of the war in both cases being the restoration of legitimate authority and the revival of allegiance. And until this revival of allegiance there must be the same need of military occupation and repression in both cases.”

After showing that the existence of the States is indispensable to that of the Federal Government, he proceeded, “it is not permissible by mere interpretation to clothe that Government with a power permanently to abolish the State government by way of punishing or suppressing the rebellion; or to convert the States into mere Territories of the United States, that is, public domain, to be divided up afterward by lines different from those of the States, and again admitted into the Union like matured Territories, with such new geographical limits as Congress may see fit to establish.”

Article IV., Section 3, Clause 1 of the Constitution the Senator regarded as an express prohibition to change the boundaries of any State once in the Union without its consent; “its consent in its capacity as a State, freely given by its own Legislature.” He believed that the Amnesty Proclamation of President Lincoln indicated that its author held a different opinion.

He rejected the idea that the rebellious States could be converted into Territories. This term, under our system, he added, “implies land never lying in any State, land ceded to the United States either by the old States, or purchased or conquered from foreign nations. The term never has been used to describe a State or any part of a State; and it implies not only the ownership of the soil and right of disposition, but full and complete political jurisdiction in the Federal Government over the people resident there....”