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.