Lincoln's Plan of Reconstruction

by Charles H. McCarthy

“But a change of form in the actual government may be equally effective. Cicero speaks of a change so complete as ‘to leave no image of a state behind.’ But this is precisely what has been done throughout the whole Rebel region: there is no image of a constitutional State left behind.”

The first resolution of the series quoted declares “That any vote of secession or other act by which any State may undertake to put an end to the supremacy of the Constitution within its territory is inoperative and void against the Constitution, and when sustained by force it becomes a practical abdication by the State of all its rights under the Constitution.” Perhaps Mr. Sumner in the essay failed to strengthen his original statement of this proposition, which he believed was “upheld by the historic example of England, at the Revolution of 1688, when, on the flight of James II. and the abandonment of his kingly duties, the two Houses of Parliament voted that the monarch, ‘having violated the fundamental laws, and having withdrawn himself out of the kingdom, had abdicated the government, and that the throne had thereby become vacant.’” This precedent, which Senator Sumner thought applicable, was by no means so formidable an argument against the rebellious States as he chose to regard it. If the term abdicate is equivalent to a species of informal resignation it did not apply strictly to the case of James II., for that unfortunate ruler presented to Englishmen the unusual spectacle of withdrawing from his kingdom under an escort of Dutch troops. Doubtless he remembered the saying of his father, who proved the truth of the adage in his own person, that the distance is short between the prison and the grave of a king. The expectation of recovering his throne was a motive with James scarcely less powerful than that of taking precaution for his personal safety. This intention appears from the unsuccessful campaign in Ireland, which he had selected as a rallying point. That monarch’s real offence was his violation of the laws of England. Many of his predecessors, as well as some of his successors, were as unreasonable and as obstinate as he. The charge of abdication was scarcely a decent pretext for declaring the throne vacant, and Mr. Sumner appears to have forgotten for the moment that the Federal Government is one of limited while Parliament is clothed with absolute powers. In reality James was coerced by the Prince of Orange into “withdrawing” from the Kingdom. It is not intended here to call in question the accepted vindication of the Revolution of 1688, but merely to show that the Massachusetts statesman was at times not above supporting an argument by a legal or an historical fiction.

The same resolution continues: “The treason which it [the attempt by force to terminate the supremacy of the Constitution] involves still further works an instant forfeiture of all those functions and powers essential to the continued existence of the State as a body politic.”

On the idea of State forfeiture his reasoning is entitled to more respect. He argues: “But again it is sometimes said that the States, by their flagrant treason, have forfeited their rights as States, so as to be civilly dead. It is a patent and indisputable fact, that this gigantic treason was inaugurated with all the forms of law known to the State; that it was carried forward not only by individuals, but also by States, so far as States can perpetrate treason; that the States pretended to withdraw bodily in their corporate capacities;—that the Rebellion, as it showed itself, was by States as well as in States; that it was by the governments of States as well as by the people of States; and that, to the common observer, the crime was consummated by the several corporations as well as by the individuals of whom they were composed. From this fact, obvious to all, it is argued that, since, according to Blackstone, ‘a traitor hath abandoned his connection with society, and hath no longer any right to the advantages which before belonged to him purely as a member of the community,’ by the same principle the traitor State is no longer to be regarded as a member of the Union. But it is not necessary, on the present occasion, to insist on the application of any such principle to States.”

Discarding as not essential to his defence the theories of State forfeiture, State abdication, or even State suicide, the article adds: “It is enough, that, for the time being, and in the absence of a loyal government, they can take no part and perform no function in the Union, so that they cannot be recognized by the National Government. The reason is plain. There are in these States no local functionaries bound by constitutional oaths, so that, in fact, there are no constitutional functionaries; and since the State government is necessarily composed of such functionaries, there can be no State government. Thus, for instance, in South Carolina, Pickens and his associates may call themselves the governor and legislature; and in Virginia, Letcher and his associates may call themselves governor and legislature; but we cannot recognize them as such. Therefore to all pretensions in behalf of State governments in the Rebel States I oppose the simple FACT, that for the time being no such governments exist. The broad spaces once occupied by those governments are now abandoned and vacated.”

Discussing the question of transition to rightful government he says: “And here the question occurs, How shall this rightful jurisdiction be established in the vacated States? Some there are, so impassioned for State rights, and so anxious for forms even at the expense of substance, that they insist upon the instant restoration of the old State governments in all their parts, through the agency of loyal citizens, who meanwhile must be protected in this work of restoration. But assuming that all this is practicable, as it clearly is not, it attributes to the loyal citizens of a Rebel State, however few in numbers,—it may be an insignificant minority,—a power clearly inconsistent with the received principle of popular government, that the majority must rule, ... but the argument for State Rights assumes that all these rights may be lodged in voters as few in number as ever controlled a rotten borough of England.

“Pray admitting that a minority may organize the new government, how shall it be done? and by whom shall it be set in motion?... It is not easy to see how the new government can be set in motion without a resort to some revolutionary proceeding, instituted either by the citizens or by the military power,—unless Congress, in the exercise of its plenary powers, should undertake to organize the new jurisdiction.

“But every revolutionary proceeding is to be avoided. It will be within the recollection of all familiar with our history, that our fathers, while regulating the separation of the Colonies from the parent country, were careful that all should be done according to the forms of law, so that the thread of legality should continue unbroken. To this end the Continental Congress interfered by a supervising direction. But the Tory argument in that day denied the power of Congress as earnestly as it denies this power now.”...

“But, happily,” he says, “we are not constrained to any such revolutionary proceeding. The new governments can all be organized by Congress, which is the natural guardian of people without any immediate government, and within the jurisdiction of the Constitution of the United States. Indeed, with the State governments already vacated by rebellion, the Constitution becomes, for the time, the supreme and only law, binding alike on President and Congress, so that neither can establish any law or institution incompatible with it. And the whole Rebel region, deprived of all local government, lapses under the exclusive jurisdiction of Congress, precisely as any other territory; or, in other words, the lifting of the local governments leaves the whole vast region without any other government than Congress, unless the President should undertake to govern it by military power.”...

This part of the essay concludes with a declaration that its author had no pride of opinion, but would cheerfully abandon his views when convinced of their error. He next proceeds to an examination of the sources of Congressional power. These, he asserts, are derived from the necessity of the case, for Congress must have jurisdiction over every portion of the United States where there is no other government; and from the Rights of War, which he deemed not less abundant for Congress than for the President. “It is Congress,” he contended, “that conquers; and the same authority that conquers must govern.” A third source of authority, common alike to Congress and the President, was the constitutional provision imposing on the United States the duty of guarantying republican forms of government. These ample powers were confirmed by an additional grant in the clause concerning the admission of new States “into this Union.” The latter left it with Congress to prescribe the time and manner of the return of the rebel States, assuming that they were no longer de facto States of the Union.