Lincoln's Plan of Reconstruction

by Charles H. McCarthy

But what is the proclamation which the new governments must not contravene? That certain negroes shall be free, and that certain other negroes shall remain slaves. The proclamation therefore recognizes the existence of slavery. It does just exactly what all the constitutions of the rebel States prior to the rebellion did; ... and, therefore, the old constitutions might be restored to-morrow without contravening the proclamation of freedom. Those constitutions do not say that the President shall not have the right, in the exercise of his military authority, to emancipate slaves within the States.... They do not even establish slavery.... They merely recognize it just as the proclamation recognizes its existence in parts of Virginia and in parts of Louisiana. So that the one tenth of the population at whose hands the President proposes to accept and guarantee a State government, can elect officers under the old constitution of their State in exactly the same terms and with exactly the same powers existing at the time of the rebellion, and may, under his proclamation, demand a recognition.... So soon as the State government is recognized, the operation of the proclamation becomes merely a judicial question. The right of a negro to his freedom is a legal right divesting a right of property, and is to be enforced in the courts; and then the question is what the courts will say about the proclamation. Is it valid or invalid? Does it of itself confer a legal right to freedom on negroes who were slaves? Is it within the authority of the Executive?... How local State courts, created by the Southern people, will decide such a question no one can doubt.... It is, therefore, under the scheme of the President, merely a judicial question, to be adjudged by judicial rules, and to be determined by the courts.... I do not desire to argue the legality of the proclamation of freedom. I think it safer to make it law.... Under the act of 1862 the President is authorized to use the negro population for the suppression of the rebellion; while the rebellion lasts, his proclamation in law exempts the slave from the duty of obeying his master, but after the rebellion is extinguished, the master’s rights are in his own hands, subject only to the opinion of the courts on the legal effect of the proclamation, without a single precedent to sanction it, and opposed by the solemn assertions of our Government against the principle worked to authorize it. Gentlemen are less prudent or less in earnest than I am if they will risk the great issues involved in this question on such authorities before the courts of justice.

By the bill we propose to preclude the judicial question by the solution of a political question. How so? By the paramount power of Congress to reorganize governments in those States, to impose such conditions as it thinks necessary to secure the permanence of republican government, to refuse to recognize any governments there which do not prohibit slavery forever. Ay, gentlemen take the responsibility to say, in the face of those who clamor for speedy recognition of governments tolerating slavery, that the safety of the people of the United States is the supreme law; that their will is the supreme rule of law, and that we are authorized to pronounce their will on this subject—take the responsibility to say that we will revise the judgments of our ancestors; that we have experience written in blood which they had not; that we find now, what they darkly doubted, that slavery is really, radically inconsistent with the permanence of republican governments; and that, being charged by the supreme law of the land, on our conscience and judgment, to guarantee, that is, to continue, maintain, and enforce, if it exist, to institute and restore when overthrown, republican governments throughout the broad limits of the republic, we will weed out every element of their policy which we think incompatible with its permanence and endurance.... It [the bill] adds to the authority of the proclamation the sanction of Congress....

Gentlemen must deny the jurisdiction of Congress over the States where there are no recognized governments, or place a bound or limit to the discretion of Congress....

And if the sentiments of State pride and State rights be touched by the assertion of this wide discretion, which men may deny but cannot expunge, I would admonish those who dislike it that it is a jurisdiction which nothing but the dereliction of the States can wake into activity, and they who wish to exclude it from their limits have only not to give occasion for its exercise by renouncing obedience to the Constitution and pulling down their own State governments. But now the jurisdiction has attached in all the rebel States. Until Congress has assented, there is no State government in any rebel State, and none will be recognized except such as recognize the power of the United States; so that we come down to this: whether we—and when I say we, I mean we upon this side of the House, who are firmly, thoroughly, and honestly convinced that the time has come not merely to strike the arms from the hands of the rebels, but to strike the fetters from the arms of the slaves, and remove that domineering and cohesive power without which we could have had no rebellion, and which now is its animating spirit, and which will die when it dies—....

And if it be time [for Congress to assert its authority] then all I ask in conclusion is, that gentlemen will go and read that great argument of Daniel Webster in the Rhode Island case ... where he met this semi-revolutionary attempt to count heads and call that the people, and maintained—and so the Supreme Court judged when it refused to take jurisdiction of the question—that the great political law of America is that every change of government shall be conducted under the supervising authority of some existing legislative body throwing the protection of law around the polls, defining the rights of voters, protecting them in the exercise of the elective franchise, guarding against fraud, repelling violence, and appointing arbiters to pronounce the result and declare the persons chosen by the people.... He [Webster] maintained it to be the great fundamental principle of the American government that legislation shall guide every political change, and that it assumes that somewhere within the United States there is always a permanent, organized legal authority which shall guide the tottering footsteps of those who seek to restore governments which are disorganized and broken down.

The bill, he asserted in conclusion, was an effort to apply this great principle of American law.[^[312]]

Representative Scofield, of Pennsylvania, said, April 29, 1864, when the subject was again before the House, that the continuity of constitutional government in the seceded States had been broken, the regular transmission of political power interrupted. How, he inquired, should the severed thread be joined? By the unconstrained action of the people themselves, say the gentlemen in opposition. He indorsed that sentiment, and added that when the people of those States should ground the arms of their rebellion, and uncoerced take upon themselves the easy yoke and light burden of the ever gentle Federal Government it would mark a glad day in those uncheerful years of our history.

For those States from which hostile armies had been excluded Congress should legislate or leave the people in the rough hand of military law. The bill designed to discharge that duty was generally acceptable to any one who conceded the propriety of Congressional action, its three prohibitions being probably the only debatable points,—that is the assumption of Confederate debts, the prevention of Confederate officers from voting and the prohibition of involuntary servitude.

To assume the rebel debt, he asserted, would be to offer a high bounty for future rebellions; if rebel officers were permitted to vote, upon what principle of comparative justice could the privilege be denied to ordinary criminals? These officers were guilty of the highest crime against government. As to the third prohibition he had more to say.

“If God shall give us victory,” continued Mr. Scofield, “and enable us to subdue or scatter the army of the enemy, is a voluntary reunion of the States possible? I say voluntary because I suppose nobody desires a Union always to be maintained by force; and I use the word reunion because nobody proposes a form of government different from our present system of State brotherhood. I am not now speaking of the several plans of reconstruction, for they are designed only as temporary devices, looking to a reunion.... My question looks beyond the battle and beyond reconstruction. When the victory is won, if won it shall be, and the transition over, will the insurgent States willingly stay where they have been forcibly put in their old places in the old Union?... Our own liberties could not survive their permanent subjugation. When the Federal Government becomes strong enough to hold eleven States as colonies, it will be too strong, I fear, for the people’s liberties.” All motives for those States ever to depart should be removed.