blies, and hence could have had no validity in 1867, if
they ever had any. Another view was, not that the states
had by act of rebellion lost their membership in the Union,
but that they had forfeited their right to be treated as states
on an equality with the original members. This would be
a more rational view, were there any constitutional authority
for a class of states in our Federal system not on an equality
with the original states. And even if it be granted that the
Union is not one of equals, it cannot be seriously claimed
that Congress, as an agent of the sovereign, could have the
authority to establish the inequality and define its extent.
This would be an exercise of constituent powers, while the
creation of states and the delimitation of their spheres of
activity is, under our system, an act of the sovereign, and
not of the government. Moreover, in assuming that the
states were still in rebellion, that their governments were
illegal, and that life and property were insecure, Congress
seems to have gone to unnecessary lengths. As a matter of
fact, the commander-in-chief of the army and navy of the
United States had more than a year before officially pro-
claimed the rebellion at an end, and there was probably not
a Confederate soldier in arms against the government. As
for the alleged illegality of the state governments, it is suffi-
cient to say that they were organized in the regular American
way, and for the most part in accordance with constitutions
and laws made before the passage of the ordinances of seces-
sion, and whose validity Congress never denied; and made
by men who, if they had forfeited their political rights by
rebellion, had, nevertheless, received the executive pardon
which absolved them from the legal consequences of their
actions. Moreover, these governments had been recognized
by the chief executive as legal governments. His right to
do so seems to be well settled. ¹

The duty of the United States to guarantee "republican"
government to the states was relied upon by Congress as a
justification for its action. The exact content of the term
"republican" government had not been expressly defined
in 1865. By the well established principles of the public
law of the United States, it may be said to have meant
government by representatives, chosen by the political
people. ² Judged by this test, the governments in the
Southern states could hardly be said to have been unre-

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