Sumner, Charles (1811-1874) [Draft of Sumner's article on "Domestic Relations" with regard to the Confederate states]

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[1] At this moment our Domestic Relations all hinge upon one question: What shall be done with the rebel States?...

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[4] [struck: Two] [inserted: Three] [struck: Three] [inserted: Four] military governors [inserted: of Staff] [struck: of Staff] have been already appointed... So far as is known, the appointment of each was by a simple letter from the Secy of War. But if this can be done in [struck: two] [inserted: three] [struck: three] [inserted: four] States, where is the limit? It may be done in every rebel state, [struck: if not in every] & if not in every other state of the Union, it will be simply because [struck: those] the existence of a valid State Govt excludes the exercise of this extraordinary power.

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[5] The relations of the States to the National Govt must be carefully considered; not too boldly; not too timidly, - in order to see in what way, or by what process, the transition from [struck: the Rebellion] [inserted: Rebel forms] may be most surely accomplished.

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[5]…The dogma & delusion of State Rights, which did so much for the Rebellion, must not be allowed to neutralize all that our arms have gained.

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[12] In undertaking to [struck: set up] [inserted: create] military governors [struck: we place in] [inserted: of] States, we reverse the policy of the Republic, as [inserted: solemnly] declared by Jefferson, & subject the civil to the military authority...

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[26] It is clear that these military magistrates are without any [inserted: direct] sanction in the Constitution or in existing laws. [struck: if they were] [inserted: They are not even "major-generals," or other military] [struck: for] [strikeout] officers, charged with the duties of enforcing martial law, [struck: they [illegible] have a different character; but they]; but they are special creations of the Secy of War, acting under the President, & charged with universal powers...

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[29]... if a new govt. is to be supplied, it should be [struck: done] [inserted: supplied] by Congress, rather than by the President, & it should be according to [inserted: established] law rather than according to the mere will of any functionary, to the end that ours may be a govt. of laws and not of men.

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[44] From [struck: the] [strikeout] [inserted: a] period even anterior to the Federal Constitution, there has been a [inserted: perverse] pretension of State Rights, which has perpetually interfered with the unity of our Govt.

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[65] The Constitution, it will be seen, was framed in order to remove the difficulties arising from State Rights...

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[67] [inserted: Not "we, the States," but "we, the people of the United States." Such is the beginning & origin of our Constitution.] Here is no compact or league between States, [struck: no] involving the recognition of State Rights…

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[70]…ordained & established by the people of the U States for themselves & their posterity. This govt. is not established by the States, nor is it established for the States; but it is established by the people, "for themselves & their posterity"...

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[80] Powers of Congress
In the exercise of [struck: its this] its sovereignty Congress is intrusted [sic] with large & peculiar powers...

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[82]…In [struck: conferring upon Congress] the power to "declare war" & "to raise & support armies," Congress possesses an [struck: absolute] exclusive power, in itself immense & infinite, over persons & property [83] sustaining Slavery…

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[85] Constantly & in every thing we behold the Constitutional subordination of the States. But there are other provisions, by which the States are expressly deprived of important powers...

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[101] Thus, whether we regard the [inserted: large] powers vested in Congress, [struck: on] the powers denied to the States [inserted: absolutely]; the powers denied to the States without the consent of Congress; or those other [struck: power] [inserted: provisions] which accord [struck: to the] supremacy to the United States, we shall find [struck: State Rights] the pretension of State [struck: Rights] [inserted: sovereignty] without foundation, except in the imagination of its partisans...

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[107]…But the new govt. had hardly been inaugurated before it was disturbed by the [inserted: pestilent] pretension of State Rights, [struck: & this pretension has] which, indeed, has never ceased to disturb it since.

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[111] When it was supposed that Fremont was about to be chosen President, the menace became louder, & mingling with it was the hoarse mutter of war; & all this audacity was in the name of State Rights. But in the autumn of 1860, on the election of Mr Lincoln, the case became much worse. Scarcely was the [struck: belligerence] [inserted: news] [struck: news] [inserted: result] [inserted: of this election] [strikeout] [inserted: known] by telegraph before the country was startled by [struck: the] other intelligence to the effect that certain States at the South were about to put in execution the long pending threat of secession, [struck: & this] of course in the name of State Rights.

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[117]... It was through the [strikeout] [inserted: imbecility] of Mr. Buchanan that the [inserted: States] were allowed to use the sword. God forbid that now, through any similar imbecility of Congress, they shall be allowed to use the buckler!

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[151] ... 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 & [struck: to all] indisputable fact, that this gigantic treason was inaugurated with all the forms of laws known to the States...

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[153] Again [strikeout] is it said, that the States by their treason & rebellion, levying war upon the National Govt, have abdicated their places in the Union; & here the argument is upheld by the historic example of England, at the Revolution of 1688...

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[179] The new govts. can all be organized by Congress, which is the natural guardian of people without any immediate govt. [strikeout] [inserted: & within] the jurisdiction of the Constitution of the U. States. [strikeout] Indeed, with [struck: the also and] [inserted: [illegible]] [struck: [illegible]] the State Govts. already vacated by rebellion, the Constitution [struck: is] becomes, [struck: the supreme] for the time [strikeout], the supreme & only law, binding alike on President & Congress, [struck: within] so that neither can establish any law or institution incompatible with it. And the whole rebel region, deprived of all local govt. lapses under the [inserted: exclusive] jurisdiction of Congress, precisely as any other territory; or in other words, the lifting of the local govt's leaves the whole vast region without any other govt. than Congress, unless the President should undertake to govern it by military power.

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[184] If we look at the origin of this power in Congress, [strikeout] we shall find that it comes from [strikeout] [inserted: 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 govt; & since, in the present case, there is no other govt, the whole region falls within the jurisdiction of Congress.

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[186] Secondly, This jurisdiction may also be derived from the Rights of War, which surely are not less [struck: ample] [inserted: abundant] for Congress, than for the President. If the President, [struck: written the State rebel States &] disregarding the pretension of State Rights, can appoint military governors within the rebel states, to serve a temporary purpose, who can doubt that [struck: the] Congress can exercise a similar jurisdiction?...

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[188] Thirdly. But there is another source for this jurisdiction, which is common alike to Congress & the President. It will be found in the constitutional provision, that "the U. States shall guarantee to every State in this Union a republican form of govt, & shall protect each of them against invasion"...

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[191] ...Congress will blot no star from the flag; not will it [192] to obliterate any State liabilities. But it will seek, [struck: as it] according to its duty, in the best way, to maintain the great and real sovereignty of the Union, by upholding the flag unsullied, & by enforcing everywhere within its jurisdiction the supreme law of the Constitution...

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[193]…Slavery is so odious that it can exist only by virtue of positive law, plain & unequivocal; but no such words can be found in the Constitution. Therefore, slavery [strikeout] is impossible within the exclusive jurisdiction of the national Govt. For many years I have had this conviction, & have constantly maintained it. I am glad to believe that it is implied, if not expressed, in the Chicago Platform. Mr. Chase, among our public men, is known to accept it sincerely. Thus Slavery in the territories is unconstitutional; [194] [struck: For many years I have had this conviction & have constantly maintained it. I believe it is implied if not expressed is the Chicago platform [inserted: Mr Chase [illegible]] [struck: Mr. Chase [illegible]] According to this principle [illegible] can the [illegible] is unconstitutional] but if the Rebel territory falls under the exclusive jurisdiction of [struck: Congress] [inserted: the National Government], then Slavery will be impossible there. In a legal [strikeout] & constitutional sense, it will die at once. The air will be too pure for a slave. I cannot doubt that this great triumph has been already won. The moment that the States fell, Slavery fell also, to that even without any Proclamation of the President, Slavery had ceased to have a legal & constitutional existence in every rebel State.

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[195a] Those citizens in the Rebel States, who, throughout the darkness of the Rebellion, have kept their faith, will be protected, & the freedmen will be [struck: saved] [inserted: rescued] from [struck: any effort] [inserted: hands that] threaten to cast them back into Slavery.

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[200]"Once free, always free." This is a rule of law, & an instinct of humanity. It is a self-evident axiom, which only tyrants & slave-traders have denied. [struck: But] The brutal pretension thus flamingly advanced, to re-enslave those who have been set free, puts us all on our guard. There must be no chance or loop-hole for such an intolerable, Heaven-defying iniquity. Alas! there have been crimes in human history; but I know of none blacker than this. There have been acts of baseness; but I know of none more utterly vile. Against the possibility of such a sacrifice we must take a bond which cannot be set aside, & this can be found only in the powers of Congress.