In considering the different plans of reconstruction it is not deemed necessary to discuss further than has been done in the preceding pages the President’s theory of State status. There, in his effort to establish loyal governments in three of the rebellious States, as well as in the protection and encouragement extended to reorganized Virginia, we have seen practical applications of that theory. In his first inaugural Mr. Lincoln said: “It is safe to assert that no government proper ever had a provision in its organic law for its own termination,” and on the same occasion he added, “No State, upon its own mere motion, can lawfully get out of the Union; that resolves and ordinances to that effect are legally void.”^[282] From the principles of March 4, 1861, was logically deduced the central idea of the plan announced in December, 1863, and maintained by the President till the last hour of his life. In his first message to Congress, submitted at the special session beginning July 4, 1861, he again attempted to remove the fears of those whose prejudice ascribed to the dominant political party a purpose to interfere in the domestic concerns of the slaveholding States. As will be seen by the following quotation he little more than reiterated on that occasion what he had solemnly declared four months earlier:

Lest there be some uneasiness in the minds of candid men as to what is to be the course of the Government towards the Southern States after the rebellion shall have been suppressed, the Executive deems it proper to say, it will be his purpose then, as ever, to be guided by the Constitution and the laws; and that he probably will have no different understanding of the powers and duties of the Federal Government relatively to the rights of the States and the people, under the Constitution, than that expressed in the inaugural address.

He desires to preserve the Government, that it may be administered for all, as it was administered by the men who made it. Loyal citizens everywhere have the right to claim this of their Government, and the Government has no right to withhold or neglect it. It is not perceived that, in giving it, there is any coercion, any conquest, or any subjugation, in any just sense of those terms.^[283]

The first paragraph quoted expresses his perfect confidence in a successful conclusion of the war, and in this respect suggests the faith of Charles Sumner, in whose private correspondence the same thought constantly occurs. In his message the President observed also that Virginia had allowed “this giant insurrection to make its nest within her borders; and this Government has no choice left but to deal with it where it finds it. And it has the less regret, as the loyal citizens have, in due form, claimed its protection. Those loyal citizens this Government is bound to recognize, and protect, as being Virginia.”^[284]

As early as June, 1861, Mr. Lincoln, on application of Governor Pierpont, recognized the restored State of Virginia by promising assistance to repel invasion and to suppress domestic violence; his example was followed by both Houses of Congress: first, in the prompt admission of Senators and Representatives from that Commonwealth, and long afterward, when there was ample time for reflection, by consenting to admit the new State of West Virginia, to whose separate and independent existence the reorganized Legislature had formally assented. The recognition of Pierpont’s government, however, involved on the constitutional question little difference of opinion between the President and Congress. Thus far the political departments, if not in complete harmony, were at any rate not in conflict. This act, though it marked no distinct Executive policy, was the occasion of some discordant notes which will be referred to in their proper relation.

It may not be unnecessary to observe that underlying the early policy of the President was a conviction that the rebellion was effected by a small but treasonable faction; indeed, in the message of July 4 he expressed his belief that, with the probable exception of South Carolina, the disloyal were in a minority in all the seceding States. The great mass of Southern people, it was assumed, opposed disunion, and with Federal assistance would soon right themselves. Peaceful citizens of that section, being regarded as still under protection of the Constitution, were, therefore, not to be molested. The conflict waged by the General Government was a personal war against insurgents. Leaders who encouraged sedition and committed acts of hostility against the United States could be tried precisely as in a consolidated state like Great Britain, and upon conviction punished for their treason. This attitude was not only wise, but had the additional merit of greatly simplifying the method of restoration. It asserted further that the rebellious States were still in the Union, and under the existing compact could not lawfully withdraw from it; being in the Union, they were entitled to all the rights accorded to other members of the confederation. In brief, its essential idea was the indestructibility of a State, and it denied that the integrity of the national domain had been impaired or the number of States diminished by the ordinances of secession. The General Government could properly aid the people of a State to express their will, but, beyond what was demanded by the exigencies of the war, could not legally exercise those powers constitutionally reserved to the States. By the treasonable act of levying war against the Republic the rights and franchises incident to United States citizenship were forfeited. The power of Congress extended no further than to a guaranty of preËxisting republican forms of government.

To the correctness of these principles Democrats and Republicans alike gave almost universal assent. But the war was increasing in magnitude, and the measures adequate to the suppression of a gigantic rebellion proved to be very different from those adapted to a local insurrection. The President’s original intention was to overcome armed resistance to Federal power and as speedily as possible restore the States to their former relations. This task, however, was more easily conceived than accomplished, and in the terrible conflict that ensued political parties as well as individual statesmen were swept onward from point to point to very different resting-places. From this condition resulted the great number of theories of reconstruction presented before the end of the rebellion.

The President early in the war adopted principles that found little favor with conservative Democrats. His readiness to recognize the restored State of Virginia was equivalent to a declaration that if a majority of the people in one of the seceded States voluntarily transferred their obedience and support to a hostile power the loyal minority constituted the State and should govern it. In this connection will be remembered the objections of Bayard and Saulsbury to receiving Senators Willey and Carlile from the reorganized government of Virginia. A further advance is indicated by Mr. Lincoln’s appointment, early in 1862, of military governors for those States that had been brought partly within Federal military lines. After the proclamation of September 22, 1862, and that of January 1 succeeding, the question of restoration was left permanently out of view. If the erring States were ever to resume their places they must first recognize the anti-slavery legislation summarized in the preceding chapter. Hitherto the paramount consideration with the President was a speedy restoration of former relations; thenceforth “the Union as it was” became impossible, because slaves liberated in the progress of the war could never be returned to a condition of servitude. The introduction of this element greatly increased the difficulties of a problem already sufficiently intricate. But neither this nor any other consequence of his proclamation appears to have been overlooked by the Executive.

The message of December 8, 1863, together with the accompanying proclamation sketched in outline the only plan which Mr. Lincoln ever published on the subject of reconstruction, and even to this mode of reinstatement he did not require exact conformity, recognizing that its modification might be demanded by inherent differences in situation among the returning States. By its terms all persons participated in the rebellion, except certain described classes, were promised amnesty with restoration of property (excluding slaves and those cases of property in which rights of third parties intervened) upon taking an oath which pledged support of the Constitution and the Union; of the slavery legislation enacted during the war (unless such acts were repealed by Congress, or were modified or annulled by the Supreme Court), and adherence to all Executive proclamations on that subject so long and so far as not modified or declared void by the Judiciary. Whenever in any of the rebellious States a number of persons equal to one tenth of the voters participating in the Presidential election of 1860, who were qualified electors under the laws existing immediately before the ordinance of secession, should reËstablish a State government republican in form, and not contravening this oath, it would be recognized as the true government of that State and should receive the benefits of the constitutional guaranty. To the emancipated race renewed assurance of permanent freedom was given. It was also suggested that in reorganization the political framework of the States be maintained. The admission of members elected to Congress was a matter for the determination of its respective Houses.

It is proper to notice in this method of reorganization, known afterward as “the Louisiana Plan,” the absence of any provision for conferring on the freedmen the elective franchise. In a private letter to Governor Hahn the President had, it is true, expressed his personal preference for including among the electors such of the colored race as had fought gallantly in the Union ranks and also the very intelligent among them^[285]. This, however, was only an unofficial suggestion. Nor were securities of any sort required for the future as a condition of reinstatement.

Under this plan, which was presented as only a rallying point, Union governments had been inaugurated in Tennessee, Louisiana and Arkansas; the first two participated in the Presidential election of 1864, and before the close of the war they had all elected members to Congress. The legality of these governments Mr. Lincoln always maintained. How Congress regarded them will be related in succeeding chapters.

Long before the announcement of any mode of reorganization by the Executive, members of the Legislative branch of Government had made some efforts in this field; these, however, were for the most part tentative and hesitant. The question had not yet been brought fairly before Congress; indeed, it was in discussing the results and tendencies of Presidential reconstruction that the Congressional plan, destined ultimately to prevail, slowly assumed definitive form.

As early as December, 1861, Mr. Harlan, of Iowa, introduced into the Senate a bill for the establishment of provisional governments for the territory embraced by the States of Georgia, Alabama, Mississippi, Louisiana, Texas, Arkansas and Tennessee. It was referred to the Committee on Territories, but was never reported.

More important, however, than this proposed enactment, both because of the acknowledged position of their author and the influence which they exerted upon the mode of reconstruction finally adopted, were the nine resolutions offered, February 11, 1862, by Charles Sumner. These were “declaratory of the relations between the United States and the territory once occupied by certain States, and now usurped by pretended governments, without constitutional or legal right.” A preamble in the characteristic style of this celebrated statesman introduced his famous propositions, which were as follows:

Whereas certain States, rightfully belonging to the Union of the United States, have through their respective governments wickedly undertaken to abjure all those duties by which their connection with the Union was maintained; to renounce all allegiance to the Constitution; to levy war upon the national Government; and, for the consummation of this treason, have unconstitutionally and unlawfully confederated together, with the declared purpose of putting an end by force to the supremacy of the Constitution within their respective limits; and whereas this condition of insurrection, organized by pretended governments, openly exists in South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Arkansas, Tennessee, and Virginia, except in Eastern Tennessee and Western Virginia, and has been declared by the President of the United States, in a proclamation duly made in conformity with an act of Congress, to exist throughout this territory, with the exceptions already named; and whereas the extensive territory thus usurped by these pretended governments and organized into a hostile confederation, belongs to the United States, as an inseparable part thereof, under the sanctions of the Constitution, to be held in trust for the inhabitants in the present and future generations, and is so completely interlinked with the Union that it is forever dependent thereupon; and whereas the Constitution, which is the supreme law of the land, cannot be displaced in its rightful operation within this territory, but must ever continue the supreme law thereof, notwithstanding the doings of any pretended governments acting singly or in confederation, in order to put an end to its supremacy: Therefore:

1. Resolved, 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 rights under the Constitution, while the treason which it 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, so that from that time forward the territory falls under the exclusive jurisdiction of Congress as other territory, and the State being, according to the language of the law, felo-de-se, ceases to exist.

2. That any combination of men assuming to act in the place of such State, attempting to insnare or coerce the inhabitants thereof into a confederation hostile to the Union, is rebellious, treasonable, and destitute of all moral authority; and that such combination is a usurpation incapable of any constitutional existence and utterly lawless, so that everything dependent upon it is without constitutional or legal support.

3. That the termination of a State under the Constitution necessarily causes the termination of those peculiar local institutions which, having no origin in the Constitution or in those natural rights which exist independent of the Constitution, are upheld by the sole and exclusive authority of the State.

4. That slavery, being a peculiar local institution, derived from local laws, without any origin in the Constitution or in natural rights, is upheld by the sole and exclusive authority of the State, and must therefore cease to exist legally or constitutionally when the State on which it depends no longer exists; for the incident cannot survive the principal.

5. That in the exercise of its exclusive jurisdiction over the territory once occupied by the States, it is the duty of Congress to see that the supremacy of the Constitution is maintained in its essential principles, so that everywhere in this extensive territory slavery shall cease to exist practically, as it has already ceased to exist constitutionally or legally.

6. That any recognition of slavery in such territory, or any surrender of slaves under the pretended laws of the extinct States by any officer of the United States, civil or military, is a recognition of the pretended governments, to the exclusion of the jurisdiction of Congress under the Constitution, and is in the nature of aid and comfort to the rebellion that has been organized.

7. That any such recognition of slavery or surrender of pretended slaves, besides being a recognition of the pretended governments, giving them aid and comfort, is a denial of the rights of persons who, by the extinction of the States, have become free, so that, under the Constitution, they cannot again be enslaved.

8. That allegiance from the inhabitant and protection from the Government are corresponding obligations, dependent upon each other, so that while the allegiance of every inhabitant of this territory, without distinction of color or class, is due to the United States, and cannot in any way be defeated by the action of any pretended Government, or by any pretence of property or claim to service, the corresponding obligation of protection is at the same time due by the United States to every such inhabitant, without distinction of color or class; and it follows that inhabitants held as slaves, whose paramount allegiance is due to the United States, may justly look to the national Government for protection.

9. That the duty directly cast upon Congress by the extinction of the States is reinforced by the positive prohibition of the Constitution that “no State shall enter into any Confederation,” or “without the consent of Congress keep troops or ships-of-war in time of peace, or enter into any agreement or compact with another State,” or “grant letters of marque and reprisal,” or “coin money,” or “emit bills of credit,” or “without the consent of Congress lay any duties on imports or exports,” all of which have been done by these pretended Governments, and also by the positive injunction of the Constitution, addressed to the nation, that “the United States shall guaranty to every State in this Union a republican form of government,” and that in pursuance of this duty cast upon Congress, and further enjoined by the Constitution, Congress will assume complete jurisdiction of such vacated territory where such unconstitutional and illegal things have been attempted, and will proceed to establish therein republican forms of government under the Constitution; and in the execution of this trust will provide carefully for the protection of all the inhabitants thereof; for the security of families, the organization of labor, the encouragement of industry, and the welfare of society, and will in every way discharge the duties of a just, merciful and paternal Government.^[286]

Sumner, as already noticed, having confidence in the ultimate triumph of the national cause, began early in the war to reflect on the subject of reorganization. As might have been expected from his previous career, his opinion of the changes that would result from rebellion inclined him at the outset to adopt the views of the less extreme anti-slavery men. Notwithstanding this fact, however, his scheme of reconstruction, because of its radical and comprehensive character, caused something of a sensation when introduced in the Senate, and disturbed the repose of many conservative patriots outside. By leading Republicans it was promptly disavowed as the policy of their party. These resolutions, though never adopted or even formally discussed by Congress, colored somewhat the final work of reconstruction. An account of the extent and the manner in which they influenced the legislative plan belongs properly to a consideration of the acts of March, 1867. What appeared to be a public necessity had by that time brought many members of his party fully abreast of Mr. Sumner.

The interval had been employed in various ways to keep his peculiar theory before the public. A private letter to Francis Lieber, dated March 29, 1862, shows that Sumner’s view of the measures essential to restoration had not been modified by the discussions of a month. “Assuming,” he says, “that our military success is complete, and that the rebel armies are scattered, what next? Unless I am mistaken, the most difficult thing of all,—namely, the reorganization. How shall it be done,—by what process? What power shall set a-going the old governments? Will the people coÖperate enough to constitute self-government? I have positive opinions here. If successful in war, we shall have then before us the alternative: (1) Separation; or (2) subjugation of these States with emancipation. I do not see any escape. Diplomatists here and abroad think it will be separation. I think the latter, under my resolutions or something like.”^[287]

By a distinguished Confederate officer Sumner has been described as a statesman who seemed over-educated, and who had retained without having digested his learning;^[288] by an admirer of his own party as wanting in tact and practical wisdom as a legislator.^[289] Though it must be admitted that a grain of truth forms the basis of these criticisms, yet the letter to his friend Dr. Lieber shows no lack of insight into the events and tendencies of the times. Without anticipating a subsequent portion of this narrative it may be observed here that if his vision did not pierce the remote future, his knowledge and experience enabled him to see as much of coming events as the most gifted of his contemporaries. Writing a year later, July 21, 1863, to Hon. John Bright, one of our few friends in England, he remarked that “so great a revolution cannot come to a close at once.”^[290] The defeat of General Lee at Gettysburg a few weeks earlier suggested the thought that the destruction of the Army of Northern Virginia would have precipitated on Congress the entire question of reconstruction, and time was an essential element in the development of Sumner’s most cherished plans.

Not only in his private correspondence and in the discussion of every conceivable measure before Congress did he endeavor to enforce his theory of State status, but he also published in a leading periodical an elaboration and defence of his opinions. For many reasons the undelivered speech forming the basis of his article in the Atlantic Monthly for October, 1863, is of remarkable interest. It reveals the mental habits of one of the most useful and influential characters then in public life; the statesman is really thinking aloud. He appears, for instance, to have been much impressed by the fact that, under the Commonwealth, Cromwell partitioned his country into military districts of which Sumner remarked that there were precisely eleven, just the number of States in rebellion. One view is enforced by an appropriate passage from Cicero, while of Edmund Burke it is asserted that had he lived during the Civil War his eloquence would have blasted Southern leaders for their folly and madness in entering upon a career of rebellion. All who are familiar with the debates of that period must have observed that Sumner was considerably influenced by the authority of great names, and in consequence sometimes exposed himself to rebuke from men who, though in many respects inferior, had studied the questions of the day in the light of their own times.

It is not intended, however, to trace the origin of the doctrine of State suicide or even to suggest all the arguments upon which he relied for its support, the purpose of these remarks being rather to show on what principles its essential propositions were based. This, it is believed, cannot be better done than by explaining the resolutions in his own language.

In the Atlantic Monthly he wrote: “It is sometimes said that the States themselves committed suicide, so that as States they ceased to exist, leaving their whole jurisdiction open to the occupation of the United States under the Constitution. This assumption is founded on the fact that, whatever may be the existing governments in these States, they are in no respect constitutional, and since the State itself is known by the government, with which its life is intertwined, it must cease to exist constitutionally when its government no longer exists constitutionally.”

He acknowledges the difficulty of defining the entity which we call a State. “Among us,” says Mr. Sumner, “the term is most known as the technical name for one of the political societies which compose our Union.... Nobody has suggested, I presume, that any ‘State’ of our Union has, through rebellion, ceased to exist as a civil society, or even as a political community. It is only as a State of the Union, armed with State rights, or at least as a local government, which annually renews itself, as the snake its skin, that it can be called in question. But it is vain to challenge for the technical ‘State,’ or for the annual government, that immortality which belongs to civil society. The one is an artificial body, the other is a natural body; and while the first, overwhelmed by insurrection or war, may change or die, the latter can change or die only with the extinction of the community itself, whatever may be its name or its form.”

Phillimore is quoted in support of the proposition that a “State,” even in a broader signification, may lose its life. That author says: “A state, like an individual, may die,” and, among the various ways in which this may occur, adds, “by its submission and the donation of itself to another country.” “But in the case of our Rebel States,” resumes Mr. Sumner, “there has been a plain submission and donation of themselves,—effective, at least, to break the continuity of government, if not to destroy that immortality which has been claimed. Nor can it make any difference, in breaking this continuity, that the submission and donation, constituting a species of attornment, were to enemies at home rather than to enemies abroad,—to Jefferson Davis rather than to Louis Napoleon. The thread is snapped in one case as much as in the other.

“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.

Among the “unanswerable reasons for Congressional governments” the article says: “Slavery is so odious that it can exist only by virtue of positive law, plain and unequivocal; but no such words can be found in the Constitution. Therefore Slavery is impossible within the exclusive jurisdiction of the National Government.... I am glad to believe that it is implied, if not expressed, in the Chicago Platform; ... but if the rebel territory falls under the exclusive jurisdiction of the National Government, then Slavery will be impossible there.... The moment that the States fell, Slavery fell also; so that, even without any Proclamation of the President, Slavery had ceased to have a legal and constitutional existence in every rebel State.”^[291]

“Let it be established in advance,” declared Mr. Sumner, “as an inseparable incident to every Act of Secession, that it is not only impotent against the Constitution of the United States, but that, on its occurrence, both soil and inhabitants will lapse beneath the jurisdiction of Congress, and no State will ever again pretend to secede.”

The argument of which an epitome has been given was regarded by the Postmaster-General, Montgomery Blair, as formidable enough to merit attention, and he accordingly replied in a speech at Rockville, Maryland, in which Sumner, for arraying himself directly against the President on a question of fundamental policy in the conduct of the war, was mentioned with sharp censure. This brought upon the Cabinet member, and upon Mr. Lincoln over his shoulders, much vehement criticism. It was in relation to this address that the President said:

The controversy between the two sets of men represented by Blair and by Sumner is one of mere form and little else. I do not think Mr. Blair would agree that the States in rebellion are to be permitted to come at once into the political family and renew their performances, which have already so bedeviled us, and I do not think Mr. Sumner would insist that when the loyal people of a State obtain supremacy in their councils and are ready to assume the direction of their own affairs they should be excluded. I do not understand Mr. Blair to admit that Jefferson Davis may take his seat in Congress again as a representative of his people. I do not understand Mr. Sumner to assert that John Minor Botts may not. So far as I understand Mr. Sumner, he seems in favor of Congress taking from the Executive the power it at present exercises over insurrectionary districts and assuming it to itself; but when the vital question arises as to the right and privilege of the people of these States to govern themselves, I apprehend there will be little difference among loyal men. The question at once is presented, In whom is this power vested? and the practical matter for discussion is how to keep the rebellious population from overwhelming and outvoting the loyal minority.^[292]

Concisely expressed, the theory of State suicide based reconstruction upon the right of Congress to legislate for Federal territories and to admit new States into this Union. In one view it rested on a provision in the Constitution which makes it obligatory on the States to have republican governments. This side of the doctrine shaded into the conservative view, according to which it is the duty of the States to be represented in Congress; but Sumner, as will subsequently appear, maintained that the Confederate States should not be counted when numbers were to be estimated in the adoption of constitutional amendments; also that Congress had power to prescribe the qualifications of voters for conventions in those States. This view regarded the war as a conflict of ideas; it assumed to find authority in the individual conscience discerning the will of God, was inclined to disallow objective standards, and to consider all law as matter of subjective determination. From a careful perusal of his speeches Mr. Sumner appears to have insisted that a republican form of government could be such a one only as conformed to his subjective ideas. Except his own State, whose constitution of 1780 was held to have abolished slavery in that Commonwealth, no one of the States in 1789 possessed, according to his notions, a republican form of government. His touchstone of republicanism was the Declaration of Independence. In short, the requirements of the Constitution appear to have been found, not in the written instrument, but in his individual conceptions of political justice, equality and liberty whereby he constituted himself a new source of law. In the matter of a subjective standard of natural justice and the like, the “radicals” generally agreed with Sumner.^[293]

The position that the object of the war from the beginning, on the part of the Federal authorities, was to fulfill the guaranty of a republican form of government is untenable. It may well be doubted whether the community so guaranteed can be restricted to any particular government; indeed, it is difficult to see how a government not voluntarily instituted by the people of a State can be called republican. By having a government imposed by Congress they would resemble the people of a Territory, and the result would be an inequality among the States composing the Union.

Though it has been commended as well written, there is some crude thinking and even cruder phraseology in the preamble as well as in the resolutions themselves. Mr. Sumner appears to have been much influenced by feudal and other historical analogies. It will be seen later how he recoiled somewhat from accepting fully the consequences of his own principles.^[294] The famous theory of State suicide, as tersely stated by an able advocate of the doctrine, was in effect that “a Territory by coming into the Union becomes a State; a State by going out of the Union becomes a Territory.”^[295]

To offset the resolutions of Sumner, Hon. Garrett Davis, of Kentucky, introduced two days later a series of eight propositions. Of these the first asserts that the rights, privileges and liberties which the Constitution assures to the people of the United States “are fixed, permanent, and immutable through all the phases of peace and war, until changed by the power and in the mode prescribed by the Constitution itself.”

In the light of subsequent events, however, the last is the most interesting of the series. This declares “That the United States Government should march their armies into all the insurgent States, and promptly put down the military power which they have arrayed against it, and give protection and security to the loyal men thereof, to enable them to reconstruct their legitimate State governments, and bring them and the people back to the Union and to obedience and duty under the Constitution and the laws of the United States, bearing the sword in one hand and the olive branch in the other, and whilst inflicting on the guilty leaders condign and exemplary punishment, granting amnesty and oblivion to the comparatively innocent masses; and if the people of any State cannot, or will not reconstruct their State government and return to loyalty and duty, Congress should provide a government for such State as a Territory of the United States, securing to the people thereof their appropriate constitutional rights.”^[296]

These propositions, like the resolutions of Sumner, were never taken up for discussion, and they are referred to as containing a clear expression, by a Southern Democrat,^[297] of extra-constitutional powers in treating incorrigible States as Territories.

Sumner was not alone in maintaining novel opinions concerning the relation of the seceded States to the Federal Government. A theory destined to exert even greater influence in shaping the plan of reconstruction finally adopted was announced at the very commencement of hostilities by Thaddeus Stevens, of Pennsylvania, then one of the foremost members of the Republican party and a few years later its acknowledged leader in the House. Unlike the Massachusetts Senator, Mr. Stevens never formulated his views of State status; but as he urged them on almost every conceivable occasion the essential principles of his system may be easily collected from his numerous speeches in Congress. Subjects of legislation only remotely related to his favorite topic appear to have been regarded by him as important chiefly because of the opportunity afforded to express his sentiments on the measures necessary to reorganization. These opinions, he declared, had been deliberately formed; we know that to the end they were persistently urged and ably defended. Because of their radical nature and the frequency with which they were reiterated Stevens was by many regarded as a sort of fanatic; this estimate was confirmed, no doubt, by his bodily deformity as well as by an apparent want of amiability and a certain bluntness of expression. Even by keen observers he was at first considered a man of mediocre ability. But, though not to be compared with the giant race of an earlier generation, he was a statesman far above the common-place. Among the multitude of plans and theories offered in Congress his system was distinguished for the harmony of its parts; and enemies who hated, no less than followers who feared, him were forced to admit the consistency of his principles.

The limitations of Stevens in the field of constructive statesmanship cannot now be discussed; for their consideration belongs properly to an examination of the first reconstruction act, which was no more than a modification of his theory. Long before Sumner’s plan had agitated timid conservatives the Pennsylvanian leader by his extreme opinions had astonished Congress. When the question of discharging from labor or service those slaves employed in hostility to the United States came before the House at the special session beginning July 4, 1861, Stevens said:

Mr. Speaker, I thought the time had come when the laws of war were to govern our action; when constitutions, if they stood in the way of the laws of war in dealing with the enemy, had no right to intervene. Who pleads the Constitution against our proposed action? Who says the Constitution must come in, in bar of our action? It is the advocates of rebels, of rebels who have sought to overthrow the Constitution and trample it in the dust—who repudiate the Constitution. Sir, these rebels, who have disregarded and set at defiance that instrument, are, by every rule of municipal and international law, estopped from pleading it against our action. Who, then, is it that comes to us and says, “You cannot do this thing, because your Constitution does not permit it?” The Constitution! Our Constitution, which you repudiate and trample under foot, forbids it! Sir, it is an absurdity. There must be a party in court to plead it, and that party, to be entitled to plead it in court, must first acknowledge its supremacy, or he has no business to be in court at all. I repeat, then, that those who bring in this plea here, in bar of our action, are the advocates of rebels. They are nothing else, whatever they intend. I mean it, of course, in a legal sense. I mean they are acting in the capacity of counsellors-at-law for the rebels; they are speaking for them, and not for us—who are the plaintiffs in this transaction. I deny that they have any right to plead at all. I deny that they have any standing in court. I deny that they have any right to invoke this Constitution, which they deny has authority over them, which they set at defiance and trample under foot. I deny that they can be permitted to come here and tell us we must be loyal to the Constitution.^[298]

The expectation almost universally cherished at this time was that when the insurrection should have been suppressed, as it was confidently believed it speedily would be, the erring States, without the interposition of Federal authority, would resume their normal relations to the General Government. With this state of public opinion in mind it will readily be perceived how great an interval separated Mr. Stevens from both parties in Congress. The opening sentence of the remarks quoted contains the essential idea of his theory of the change resulting from rebellion. Armed secession had unlocked the war powers, and the Constitution, where it conflicted with these powers, had ceased to be a restraint upon government. The military had risen superior to the civil authority. The principle was boldly and emphatically announced that those who repudiated and defied the supreme law could not at the same time plead its provisions.

On January 8, 1863, the appropriation bill being under consideration, an amendment was offered to add to the clause “for compensation of thirty-three commissioners, at $3,000 each, and eleven clerks, at $1,200 each, $112,200,” the following:

Provided, A sufficient sum shall be collected in the insurrectionary States to pay said salaries: And provided further, That no greater sum shall at any time be paid to said commissioners, or to any of them, than shall have been collected from the taxes in the insurrectionary States, and paid into the Treasury of the United States.^[299]

The discussion which ensued brought out an expression of views relative to the position of the seceded States under the Federal Government. Stevens in the course of his remarks said: “I did say, sir, that I find no warrant in the Constitution for the admission, under the Constitution, of West Virginia. I do not know whether the gentleman from Kentucky voted for that bill or not.” Mr. Dunlap, the member referred to, stated that he had voted against the bill, because he deemed it unconstitutional. After this explanation the Pennsylvania leader proceeded as follows:

Then the gentleman voted against it upon the same opinion I expressed, that it was unconstitutional. But I went further and voted for it because I did not believe that the Constitution embraced a State now in arms against the Government of this Union and I hold that doctrine now. It was not said upon the spur of the occasion. It is a deliberate opinion, formed upon a careful examination of the law of the United States and the laws of nations.

Though it may be out of place just now, I will give one or two reasons for my opinion. The establishment of our blockade admitted the Southern States, the Confederates, to be a belligerent power. Foreign nations have all admitted them as a belligerent power. Whenever that came to be admitted by us and by foreign nations, it placed the rebellious States precisely in the condition of an alien enemy with regard to duties and obligations. Now, I think there is nothing more plainly written in the law of nations than that whenever a war, which is admitted to be a national war, springs up between nation and nation, ally and ally, confederate and confederate, every obligation which previously existed between them, whether treaty, compact, contract, or anything else, is wholly abrogated, and from that moment the belligerents act toward each other, not according to any municipal obligations, not according to any compacts or treaties, but simply according to the laws of war. And I hold and maintain that with regard to all the Southern States in rebellion. I do not speak of Kentucky, but of those States which have gone out under an act of legislation or convention—the Constitution has no binding influence and no application.

In answer to a question by Representative Dunlap he stated further that the seceded States, in his opinion, were not members of the Union. “The ordinances of secession,” he added, “backed by the armed power which made them a belligerent nation, did take them, so far as present operations are concerned, from under the laws of the nation.” When asked how, as Chairman of the Committee of Ways and Means, he proposed to pass an appropriation to pay officers to collect revenue in States which did not belong to the Union, he said:

I propose to levy that tax, and collect it as a war measure. I would levy a tax wherever I can upon these conquered provinces, just as all nations levy them upon provinces and nations they conquer. If my views and principles are right, I would not only collect that tax, but I would, as a necessary war measure, take every particle of property, real and personal, life estate and reversion, of every disloyal man, and sell it for the benefit of the nation in carrying on this war. We have such power and we are to treat them simply as provinces to be conquered, and as a nation fighting in hostility to us until we do conquer them. To me it is a great absurdity to say that men, by millions, in arms, shall claim the protection of the provisions of the Constitution and laws made for loyal men, while they do not obey one of those laws, but repudiate their binding effect. There never was a principle more clear than that every obligation, whether in a national or civil point of view, in order to be binding, must be reciprocal; and that the moment the duty ceases upon the one part, the obligation ceases upon the other; and that, in my judgment, is precisely the condition of the rebel States now.

The secession ordinance of South Carolina he characterized in response to an inquiry as an act of treason and rebellion, and when asked whether the backing up of these ordinances by armed force imparted to them any validity, he replied: “I hold that so long as they remain in force against us as a belligerent power, and until they are conquered, it is in fact an existing operation. I will not say anything about its legality. [Laughter.] I hold that it is an existing fact, and that so far from enforcing any laws, you have not the power.”

To Mr. Yeaman, who asked whether those people were then citizens of the United States, or whether they formed an independent nation, and if the latter whence was derived the right or the authority to wage war against them, and to tax them for the support of that war, Stevens answered: “I hold that the Constitution, in the first place, so far operated that when they went into secession and armed rebellion they committed treason; and that when they so combined themselves as to make themselves admitted as belligerents—not merely as men in insurrection, but as belligerents—they did acquire the right to be treated as prisoners of war, and all the other rights which pertain to belligerents under the laws of nations.”

Some members held in utter abhorrence the principles of the Pennsylvania leader; others were astonished at their boldness. It was in the course of this discussion, participated in by many Representatives, that Stevens defined his existing as well as his past relations to his party, and referred, not without a touch of pride, to the fact that hitherto he had pointed out the way for the Republican majority—in short, that he had been the political prophet of his party. He declared:

I know perfectly well, as I said before, I do not speak the sentiments of this side of the House as a party. I know more than that: that for the last fifteen years I have always been a step ahead of the party I have acted with in these matters; but I have never been so far ahead with the exception of the principles I now enunciate, but that the members of the party have overtaken me and gone ahead; and they, together with the gentleman from New York, [Mr. Olin] will again overtake me and go with me, before this infamous and bloody rebellion is ended. They will find that they cannot execute the Constitution in the seceding States; that it is a total nullity there; and that this war must be carried on upon principles wholly independent of it. They will come to the conclusion that the adoption of the measures I advocated at the outset of the war, the arming of the negroes, the slaves of the rebels, is the only way left on earth in which these rebels can be exterminated. They will find that they must treat those States now outside of the Union as conquered provinces and settle them with new men, and drive the present rebels as exiles from this country; for I tell you they have the pluck and endurance for which I gave them credit a year and a half ago in a speech which I made, but which was not relished on this side of the House, nor by the people in the free States. They have such determination, energy, and endurance, that nothing but actual extermination or exile or starvation will ever induce them to surrender to this Government. I do not ask gentlemen to indorse my views, nor do I speak for anybody but myself; but in order that I may have some credit for sagacity, I ask that gentlemen will write this down in their memories. It will not be two years before they will call it up, or before they will adopt my views, or adopt the other alternative of a disgraceful submission by this side of the country.^[300]

For himself, for the Administration and for the Republican party even so radical an anti-slavery man as Owen Lovejoy made haste to repudiate these extreme opinions.

In debate, January 22, 1864, Stevens enunciated still more clearly the fundamental principles of his system. “I mean to say,” he declared on that occasion, “that if a State, as a State, makes war upon the Government and becomes a belligerent power, we treat it as a foreign nation, and when we conquer it we treat it just as we do any other foreign nation.” “There can be no neutrals,” he added, “in a hostile State.” If loyal people domiciled in the South desired to avoid punishment or the hardships of public enemies, they should change their place of residence.

Relative to discerning the State in the Union minority he observed: “If ten men fit to save Sodom can elect a Governor and other State officers for and against the eleven hundred thousand Sodomites in Virginia, then the democratic doctrine that the majority shall rule is discarded and dangerously ignored. When the doctrine that the quality and not the number of voters is to decide the right to govern, then we are no longer a republic, but the worst form of despotism.” It was a mere mockery, he affirmed, to say that a tithe of the residents, because they were holier or more loyal than others, could change the form and administer the government of an organized State. The people who took a State out of the Union were subject to the laws of the commonwealth, and, so far as the General Government is concerned, subject to the laws of war and of nations, both while the war continued and when it ended.^[301]

Northern Democrats, from the beginning to the end of reconstruction, were consistent advocates of a doctrine which involved no contradictions like the system of Sumner and no element of vindictiveness like the “conquered province” theory of Stevens. Ordinances of secession they held to be null and void; these measures in no way impaired the vitality or contracted the scope of the Constitution because the power by which they were temporarily maintained, however near to attaining its object, had not been crowned with success. The result of the conflict could alone determine whether the bond of union between the seceding and the loyal States had been severed. Armed resistance to the supreme law was treason in those so engaged, even though such resistance was decreed by States. Ante bellum relations would continue unimpaired if the General Government succeeded in suppressing the rebellion. This doctrine, once a State in the Union always a State, was, so far, in harmony with the policy adopted by the Administration at the commencement of hostilities.

With all the following propositions, however, the policy of the Government was not in entire accord, nor, indeed, was it in exact conformity with the principles above ascribed to the President. The people of a State, the Democratic leaders asserted, are the State, in the widest sense of that term, and they make its fundamental law; to be their constitution it must be their unrestrained and voluntary act, not a result of coercion or intimidation. When they have freely acted, then the only essential conditions of a State constitution, in its Federal relations, are that it should be republican in form and not conflict with the Constitution of the United States. South Carolina, for example, was made a member of the Union by the Constitution and the consent of her people; except successful revolution no other power could unmake her. That revolution being unsuccessful she was still in the Union. The idea that a State was partly out of and partly in the Union, Democratic doctrine regarded as an absurdity. State officers, indeed, could commit suicide; a majority of its people could commit suicide; but the State did not, therefore, cease to exist, for the idea of a State involved the fourfold notion of a defined territory, people occupying it, functions constituting a system of government and officers to administer it.

Representative Joseph K. Edgerton, of Indiana, in an able speech delivered February 20, 1865, said that he accepted the principle of President Lincoln’s inaugural and only regretted that after so clear and sound a statement of constitutional law and good intentions the President had subsequently come to the same conclusion as Mr. Stevens. The theory then announced was the only one consistent with the true constitutional idea that the Federal Union is a perpetual union of States, and that each State, as an individual member of the Union, has in itself the same element of perpetuity that belongs to the aggregate Republic formed by the Federal union of States. The Union can be held to be perpetual only on the principle that the States composing it are perpetual corporations or bodies politic, and indestructible by any act of the aggregate body or by their own act. The States united cannot destroy a single commonwealth; power to do that is power to consolidate the States into one. A single member cannot destroy the Union; power to do that is power to secede, and neither consolidation nor secession is a principle of the Union. Here we have in amplified form the celebrated declaration of Chief Justice Chase, that the Constitution in all its provisions contemplates “an indestructible union of indestructible States.”^[302] For a different though a very able presentation of Democratic theory the reader is referred to the address of Mr. Pendleton on the bill to guarantee republican forms of government to the rebellious States.^[303]

Though this theory of a perpetual Union was the one almost universally held at the beginning of the war, it came during the progress of the conflict to be little regarded by the dominant party in Congress; by Republican leaders it was soon cast aside with indignation or contempt; it remained unaltered when their views of State status were adapted to changed conditions, and the Democratic organization, so far at least as reconstruction was concerned, settled down into little more than a party of protest.

The silence in which Sumner’s propositions were received may be regarded as a negative testimony to the conservative sentiments of Senators even after war had existed for nearly a year; the House, however, just twelve months before the Massachusetts Senator offered his plan, February 11, 1861, made a positive declaration of its opinion relative to the limitations of Federal authority by passing unanimously the following resolution: “That neither Congress, nor the people or the governments of the non-slaveholding States, have the right to legislate upon or interfere with slavery in any of the slaveholding States in the Union.”^[304] This deliberate expression establishes beyond question the fact that the Constitution, as then understood, gave no authority to the Federal Government to interfere with, control or regulate relations between master and slave in any State which recognized the right of property in man. On this subject the people were practically unanimous, their Representatives entirely so. Even three months of war, with all the antagonisms and all the bitterness excited, failed to shake this conviction.

On July 22, 1861, the day after the disaster at Bull Run, Representative Crittenden, of Kentucky, introduced the following resolution:

That the present deplorable civil war has been forced upon the country by the disunionists of the Southern States, now in arms against the constitutional Government, and in arms around the capital; that in this national emergency, Congress, banishing all feelings of mere passion or resentment, will recollect only its duty to the whole country; that this war is not waged on their part in any spirit of oppression, or for any purpose of conquest or subjugation, or purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supremacy of the Constitution, and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ought to cease.

Only two votes were recorded against it.^[305] Four days later Andrew Johnson offered in the upper House a resolution in nearly the same language, and it was opposed by only five Senators. There is little doubt that this practical unanimity in Congress reflected the sentiment of almost the entire North. This conspicuous landmark, so frequently referred to before the reunion was completed, will be useful to show how far the warring factions drifted during the progress of the conflict.

Senator Trumbull, of Illinois, who disliked certain expressions in the form in which it was proposed, said, relative to the object of the war as declared by the resolution:

I trust this war is prosecuted for the purpose of subjugating all rebels and traitors who are in arms against the Government. What do you mean by “subjugation”? I know that persons in the Southern States have sought to make this a controversy between States and the Federal Government, and have talked about coercing States and subjugating States; but, sir, it has never been proposed, so far as I know, on the part of the Union people of the United States, to subjugate States or coerce States. It is proposed, however, to subjugate citizens who are standing out in defiance of the laws of the Union, and to coerce them into obedience to the laws of the Union. I dislike that word in this connection. In its broadest sense I am opposed to it. If it means the war is not for the purpose of the subjugation of traitors and rebels into obedience to the laws, then I am opposed to it. I trust the war is prosecuted for that very purpose. I move to strike out the words “and in arms around the capital,” and also the words “or subjugation.”^[306]

Mr. Harris, of New York, said: “If slavery shall be abolished, shall be overthrown as a consequence of this war, I shall not shed a tear over that result; but, sir, it is not the purpose of the Government to prosecute this war for the purpose of overthrowing slavery. If it comes as a consequence, let it come; but it is not an end of the war.”^[307]

In the succeeding chapter will be traced with some degree of fullness the sentiments on reconstruction, in July, 1864, not only of the majority but of every important element composing Congress. The position then attained by the average Republican member, it must be repeated, was not reached at a single bound. Its progress has been described in the preceding pages. The vote on the Crittenden resolution marks the starting point. There was then, though war had existed for three months, no diversity of opinion worthy of notice. The successive advances from the declaration, February 11, 1861, that neither Congress nor the governments of the free States had a constitutional right to interfere with slavery in any slaveholding State of the Union to the passage by both Houses, July 2, 1864, of the Wade-Davis bill, which proposed by Federal law to regulate the franchise in the rebellious States, to appoint provisional governors (empowered to dissolve State conventions), and to prescribe provisions for their local constitutions, form one of the most instructive commentaries on the importance of necessity as a principle of constitutional interpretation.

A resolution introduced December 4, 1861, by Mr. Holman, of Indiana, for the purpose of getting the House to re-affirm the Crittenden propositions of July 22 preceding, was tabled by a vote of 71 to 65.^[308]

A discussion of the various theories of reconstruction might seem to require in this place, by way of anticipation, at least a summary of the Congressional plan; but as this was the mode of reorganization which was finally imposed on the South it is preferred to present its development chronologically and to consider it apart. Several of the remaining chapters will be devoted to an account of its successive modifications until the subject was taken, in December, 1865, altogether out of Executive hands.