The State-Suicide Theory (1863)

BY SENATOR CHARLES SUMNER

IT is argued that the Acts of Secession are all inoperative and void, and that therefore the States continue precisely as before, with their local constitutions, laws, and institutions in the hands of traitors, but totally unchanged, and ready to be quickened into life by returning loyalty. Such, I believe, is a candid statement of the pretension for State Rights against Congressional governments, which, it is argued, cannot be substituted for the State governments. . . .

It is true, beyond question, that the Acts of Secession are all inoperative and void against the Constitution of the United States. Though matured in successive conventions, sanctioned in various forms, and maintained ever since by bloody war, these acts—no matter by what name they may be called—are all equally impotent to withdraw an acre of territory or a single inhabitant from the rightful jurisdiction of the United States. But while thus impotent against the United States, it does not follow that they were equally impotent in the work of self-destruction. Clearly, the Rebels, by utmost efforts, could not impair the National jurisdiction; but it remains to be seen if their enmity did not act back with fatal rebound upon those very State Rights in behalf of which they commenced their treason. . . .

. . . On this important question I discard all theory, whether it be of State suicide or State forfeiture or State abdication, on the one side, or of State rights, immortal and unimpeachable, on the other side. . . .

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. . . . 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. . . .

. . . It is enough that the Rebel States be declared vacated, as in fact they are, by all local government which we are bound to recognize, so that the way is open to the exercise of a rightful jurisdiction.

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. . . .

. . . 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. . . .

If we look at the origin of this power in Congress, we shall find that it comes from three distinct fountains, any one of which is ample to supply it. . . .

First. From the necessity of the case, ex necessitate rei, Congress must have jurisdiction over every portion of the United States where there is no other government; and since in the present case there is no other government, the whole region falls within the jurisdiction of Congress. This jurisdiction . . . can be questioned only in the name of the local government; but since this government has disappeared in the Rebel States, the jurisdiction of Congress is uninterrupted there. The whole broad Rebel region is tabula rasa, or "a clean slate," where Congress, under the Constitution of the United States, may write the laws. . . .

Secondly. This jurisdiction may also be derived from the Rights of War, which surely are not less abundant for Congress than for the President. . . . It is Congress that conquers; and the same authority that conquers must govern. . . .

Thirdly. But there is another source for this jurisdiction which is common alike to Congress and the President. It will be found in the constitutional provision, that "the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion." . . . If there be any ambiguity, it is only as to what constitutes a republican form of government. But for the present this question does not arise. It is enough that a wicked rebellion has undertaken to detach certain States from the Union, and to take them beyond the protection and sovereignty of the United States, with the menace of seeking foreign alliance and support, even at the cost of every distinctive institution. . . .

. . . When a State fails to maintain a republican government with officers sworn according to the requirements of the Constitution, it ceases to be a constitutional State. The very case contemplated by the Constitution has arrived, and the National Government is invested with plenary powers, whether of peace or war. . . .

But there are yet other words of the Constitution which cannot be forgotten: "New States may be admitted by the Congress into this Union." Assuming that the Rebel States are no longer de facto States of this Union, but that the territory occupied by them is within the jurisdiction of Congress, then these words become completely applicable. It will be for Congress, in such way as it shall think best, to regulate the return of these States to the Union, whether in time or manner. No special form is prescribed. But the vital act must proceed from Congress. . . .

Charles Sumner, Our Domestic Relations, or How to Treat the Rebel States, in Atlantic Monthly, October, 1863 (Boston), XII, 518–526 passim.