Year: 1863

ICOnstituti0D, the State GovernmentS OF the De
ceded States, as at present administered by men
sworn to support Constitution alien to the Consti
tuition Of the United States, have ceased to exist
de Iacto. The fanctionaries of these Governments
are civilly dead, but for all this the State is not
dead If worse than Oriental plague should
sweep away all the officials Of the State Government
Of Delaware, it would not be pretended that hs


State Of Delaware had thereby become extinct,
though the catastrophe might involve the necessity
Of resorng al inteyro to the primary source of all
political power for the purpose of re-initalliDg a
State Government. As was well said by the New
ner was first broaohed in the Senate Of the United
States


"A destruction sudden that which fell upon the
hosts of Sennacherb might bef Governor Morgan, all
the State officers and all the members Of the Legislature
and yet the State of New York would continue to be-
One-half ninetenths of the people might be carried of
by pestence and yet the remainder would constitute
the State of New York Nay, foreign conquest might
dspese the Government at Albany and prevent the
pie from assembling in any mode for considerable time
he conqueror withdrew. Nothing short of perpetual
subjugaton, the entire merger of the political society
in another. would destroy the existence of the State


There is but one way in which State mey be
terminated "under the Constitution" aud that is
by the joint consent of Congress and the Legisla-
ture Of the State or States concerned. Delaware,
for instance, which is State Of the Union, might
merge itself into Pennsylvania, another State of
the Union by act of Congress and Of the two State
Legislatures, and there would be thereafter no
State of Delaware; its existence as State would
be terminated. We know, Of no other way 10
which State can be constitutionally extnguished.


And here we might rest onr argument. For, if
this position be well taken, it leaves Mr.. Sumner
no ground on which to base his theory But let
US look more particularly to what he calls the
I" sources of Congressional power" over the whole
insurgent district, for the organization of civil
governments within it on the ruins of the States
"three fountains, generous and hospitable," ex-
listing "in the Constitution ready for the occa
sion." We think it will not be difficult to show
that these sources, instead of being exuberant
fountains, are really empty wells, into which Mr..
Sumner has thrown his polished bucket and drawn
nothing up. Let US examine them.


He derives his first inference in favor of this
Congressional power from "the necessity of the
CASE" He says:


"Ez mecessaie rel Congress must have Jurisdiction
every portion Of the United States here there is
other and since in the present there
other Government the whole region falls within the
Jurisdiction of Congress This jurisdiction ia incident If
you please, to that guardianship and eminent domain
which belong the United States with regard t. all its
territory and the people thereof and INTO activity
when the local government ceases to exist 1t be
questioned only the name the local but
hasd
the jurisdiction Of Congress is uninterrupted there The
whole broad rebel region tabua rasa or clean slate
where Congress- under the Constitution OF the United
States, may write the laws"


Senator, we submit that this proposition is mere
petitio principii 1t bcgs the very question in
dispute. This will be apparent from the authority
he cites in defence of his principle, when he i'm
mediately proceeds to say:


In adopting this principle, follow the authority of
the Supreme Court of the United States 10 determining
the Jurisdiction of Congress the Territories Here
the words of Chief Jus ice Marshall:


Perhaps the power Of governing Territory belonging
to the United States which has not by becoming State
acquired the means Of selgovernment may result
ssry from the facts that II is not within the Jurisdiction
Of any pal cuar State and s within the power and jus
dction If the United States The right TO govern may
the natural quence Of the right to acquire territory"


Now, who does not perceive that this doctine
Of Chief Justice Marshall applies only TO territory
belonying TO the United States phich has not be-
come a State? But the whole territory within
which the insurrection now temporarily prevails
has been once parttioned into States, and the
question at issue is, whether these States have
ceased, in law fact, to exist, because the State
Governments are, for the time being, suspended
and disturbed? The whole insurgent territory
lies within the jurisdiction Of particular States"
and is therefore, excepted from the scope Of this
judicial dictum, which, moreover, as Mr. Sumner
Is aware, had reference when originally uttered by
Judge Marshall to the single question then pend
lag before the Supreme Court.


The second source OF the power ascribed by Mr..
Sumner to Congress for the civil government Of
the insurgent territory is found in the "rghts Of
war" To this effect he says:


Tbey are the powers conceded by civilized society to
nations at war; known the rights of war; at multi
| tudin, ia, and minute, vast snd various 1t would be
strange il Congress could organize armies and naves to
conquer and could not also organize governments 10 pro-
,ect he Tocqueville, who institutions with so
eye remarked that since, in spite Of all political


ctons the preponderatpg power resided in the State
Cove ent and not in the National Government, civil
war here would be nothing but foreign in dis
guise OF course the natural consequence would be to
give the National Government in such civil all the
| rights which il would have in foreign war"