plan of its own in 1867, consisting of the Davis-Wade plan, increased by the suffrage features of the Sumner theory, and the whole based on a modification of the Stevens theory of the suspension of the Constitution."

As regards the abstract constitutionality of the five reconstruction theories mentioned, there can be no question but that the Southern Democratic or Restoration theory was the one most nearly in consonance with the general constitutional theory upon which the North had waged the war.2

The constitutional objections to the presidential theory, aside from the question as to whether it should be applied by the executive or by the legislature, were not serious. It was not unreasonable to maintain that the lately rebellious States were without governments qualified to exercise the constitutional rights that were claimed, and, this being so, it was well within the province of the Federal Government to lend its advice and even armed forces to the loyal minorities in those States for the purpose of aiding

1 Quoted from the article "Reconstruction" in Lalor's "Cyclopedia of Political Science," by the late Alexander Johnston.

2 At the special session of Congress in 1861, a Joint Resolution passed by very large majorities in both Houses defined the object of the war as follows: "That this war is not prosecuted upon our part in any spirit of oppression, nor for any purpose of conquest or subjugation, nor for the 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 all laws made in pursuance thereof, and to preserve the Union with all the dignity, equality, and rights of the several States unimpaired; that as soon as these objects are accomplished, the war ought to cease."

them to establish governments that might fairly be termed loyal to the Union. Therefore it would seem that no constitutional objection lay to the proclamation of President Lincoln in which he said that when one tenth of the loyal voters should establish a state government that was republican in form, such government would be recognized by him as the true government of that State, and the State thereupon admitted to all the rights guaranteed it by the federal Constitution. As to the right, however, of the President himself to determine, as he did in his proclamation, when and under what circumstances citizens of the States in question should be qualified to hold office, there would seem to be constitutional objection. Also it might very well be asked whether any government established by simply one tenth of the adult males of a community could be said to be republican in character. To this point we shall return later on when we come to consider the meaning of that clause of the Constitution which provides that the United States shall guarantee to each State a government republican in form.

The "State Suicide" theory of Sumner as well as the "Conquered Province" theory of Stevens are to be regarded as having been wholly illogical and inconsistent with that view of the nature of the Union upon which the war had been fought; the former because it could not be granted that a State was able, by any act of its own, to change its constitutional and political status in the Union any more than it could take itself out of the Union; the latter because the principles applicable to conquered territory have ref

erence only to foreign territory subdued by force of arms. Manifestly a State cannot make a conquest of its own territory; and, if the States could not secede, they could not become foreign.

The "Forfeited Rights" or "Congressional" theory of Reconstruction was, in a way, a compromise between the Presidential theory on the one hand and the theories of Sumner and Stevens on the other, but in so far as it departed from the former and instead of simply aiding the inhabitants of the Southern States themselves to establish loyal, republican governments, imposed conditions that were not, and could not constitutionally be, required of the other States. in the Union, it was clearly inconsistent with the general northern theory as to the character of the Union. Aside, moreover, from the invalidity of the argument that the States, as States, might "forfeit" any of their constitutional rights any more than that they could commit suicide, Congress was led, in the application of the theory, into the grossest of inconsistencies, recognizing the Southern Commonwealths as effective members of the Union for some purposesas for instance, for the ratification of constitutional amendments--while denying it as to others; and declaring governments forced by the bayonet upon unwilling peoples as republican in form. Upon a narration of these facts, however, we do not need to enter.

Repeated efforts were made to get the Supreme Court of the United States to pass upon the constitutionality of the various acts passed by Congress for the reconstruction of the Southern States, but with

out complete success. In a general way the court accepted as valid the Congressional theory, but never passed definitely upon the constitutionality of the acts of Congress that were passed for putting that theory into practice. In all the cases that were brought before it the court evaded a definite decision, either by declaring the questions involved political in nature, and therefore as not subject to its jurisdiction, or by finding a way to decide them upon some ground that made it unnecessary to consider the validity of the acts that were impugned. Upon several occasions, however, the Court did not hesitate to repudiate in the most emphatic manner the doctrine that the States had been outside of the Union, or that they could possibly, by any constitutional act of theirs, ever become so. In the famous case of Texas v. White (7 Wall., 700) both the right, or rather the power, of a State to take itself out of the Union, and the status of the States during the reconstruction period were brought squarely before the Court. Soon after the war, but before its government had been recognized by Congress as satisfactorily reconstructed, the State of Texas brought suit in the Supreme Court of the United States under that clause of the federal Constitution which gives to the federal Supreme Court jurisdiction of suits prosecuted by a State against citizens of another State. But unless Texas were at that time a State of the Union she, of course, had no standing as a suitor before the federal court. That Court had thus to pass in limine upon the questions of secession and reconstruction. Upon the former of these points the Court declared as follows: "The Union of

the States never was a purely artificial and arbitrary relation. It began among the colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these the Union was solemnly declared to 'be perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be more indissoluble, if a perpetual union, made more perfect, is not? But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence or of the right of self-government by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that 'the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' and that 'without the States in Union,' there would be no such political body as the United States (Lane County v. Oregon,