The New York herald., 1869-04-13

from i'd limits seems to be nocessary complement
to the other: OF thus the state OF Texas fur.
nshes q striking illustration When the war
State except that which had scen or anized for Ia,
rhat government Immediately disappeared. The
chief functiOnaries left the State. Many OF the
Msre anued 'ns or
1t inevitable that great confusion should prevail
II order maintained 1t was where the good sense
and virtue OF the citizens gave support 10 local act
iEg magistrates supplied more directly the need
ful restraints. great social change increased
the difficulty of the situation. Slavery had
been declared abolished by the proclamation Of
emancipstion; and whether questions might be
made as to the effect OF that act under the consttu
ton 1t was clear from the beginning that its praoti-
cal operation must be complete enfranchsement.
Wherever the national forces obtained control the
slaves became freemen. support to the acts OF Con-
gress and the proclamation OF the President con-
cernng slaves was made condition OF amnestY-(lS
u. y. St., 7S7)-by President Lincoln, in December
1858, and by President Johnson in May ls6S-s u s.
ST., 75S)-and emancipation was confirmed rather
than ordained by the ih constitution
proposed BY Congress In February, 1865 and ratified
before the close OF the following autumn by the re-
qusite three-f0urths OF the States. (3 U. 8. St..
774-5 The new freemen necessarily became part of
the people, and the people still constituted the STATE
for States Ike individuals. retain their identity,
thougl changed to extent In their constituent.
elements and 1t was the State thus constituted
which was now entitled to the benent OF the consi
tutional guaranty.
There being then, no government in Texas in con-
stitutional relations with the Union, 1t became
the duty OF the United States to provide
ment; but the restoration of the government
which existed before the rebellion, withou
o new election OF officers was obviously Impossible;
and before any such election could be property held
1t necessary that the old constitution should re-
ceve such amendments as would conform Its Drovi-
siOns to the new conditions created by emancipa-
ton, and AFFORD adequate security TO the people OF
the State. In the exercise OF the power conferred
by the guaranty clause as In the exercise OF every
other constitutional power discretion IN the choice
OF means Is necessarily allowed IL Is essential
only that the means must be necessary anu proper
for carrying into execution the power conferred
through the restoration OF the State to Its c0nstu
tOnal relations, under republican form OF govern
ment, and that no acts be done and no authority
exerted which Is either prohibited or unsactioned oy
the cons tuition
1t is not important to review o. length the mea-
sures which have been taken under this power by
the executive and legislative departments OF the
national goyernmeQ. 1t is proper, however, to OBJ,
serve that almost Immediately after the cessation OF
organized hOStilities, and while che war yet smou
0ered in Texas, the President OF the United States
Governor ms FOR the state and preydhg for the
assembling OF u convention, with view 10 the re-
establishment OF a republican government under an
amended constitution, and TO the restoration OF the
State to her proper constitutional relations coll
vcntlOn accordingly assembled the constitution
amended, elections held aud State government ac-
knowedgng its obligations to the Union established.
Whether The action then taken was In all respects
warranted by the constitution 1t IL not now neces-
sary to determine The power exercised Dy tue
President was supposed, doubtless, to be derived
from his constitutional functions as COmmander-in-
denied that he might institute temporary government
within nsurgent districts occupied by national forces
or take measures In any STAGE for the restoration OF
state governments faithful to the UniOn employing
however, IN such efforts only such means and agents
as were authorized by constitutional laws. But the
power to carry INTO effect the clause OF guaranty Is
primarily a legislative pOwer and resides IN Con.
gress. "Under the fourth article OF the constitution
rests VITA Congress decide what governme IL
the established one In q State. for as the United
States guarantees toeach State republican govern
m.nt. Congress must necessarily decde what
fore 1t can determine whether It Is repub..
lican or not" 1hls Is the language OF
case from Rhode Standardization Va Borden, How.
42)-arlsng from the organization OF opposing gov
ciple sanctioned by II may be applied with even
more pr0prey to the case Of State deprived of all
rlghtiul government by revolutionary violence,
full governments Is thus Overthr0wn or IN imminent
danger OF being oyerthrown by an opposing govern
ment sot up by force within the State.
The action OF the President must, therefore, be
considered as PROVISIONAL, and In that nght II
seems to have been regarded by Congress. IL was
had expired. The Thirty y-ninth Congress- which
assembled IN December, 1865, followed by the
FOrCeth Congress, which met In March, 1881, pro-
ceedei, after long deberation, to adopt various
measures for reorganization and restoration. These
measures were embodied in proposed amendments
TO the constitution, and In the acts known as the
reconstruction acts wncn have been SO far carried
INTO effect that majority of the States, which were
engaged In the rebellion have been restored
To their constitutional relations, under forms
of government adudged to be republican
Dy Congress through the admission OF
their senators AMI Representatives into the
councils OF the Union. Nothing in the case before
Us requires the court TO pronounce judgment upon
the cOnstituiionaity OF any particular provision of
these acts. But it is Important to observe that
those acts themselves show that the governments
winch had been established and had been In actual
operation, under Executive direction, were rec0g
nlzed by Congress a provisional, as existing aud as
Tnied states STATUTES 42s, the first Of the SERIES
these governments were, Indeed pronounced Illegal
and were subjected to military control. aud
were declared to be provisional only, and by the
supplementary act OF July 10, 1861 the third OF the
SERIES Il was further declared that ~ was the true
intent and meaning OF the act Of March that the
governments then existing not legal State
governments and If continued were to be continued
subject to the military commanders the respective
districts and to the paramount authority OF Con-
gress. We do not inquire here INTO the constitu-
uonality OF tins legislation, 80 far as it relates TO
military authority or TO the paramount authority OF
Congress. IL suiiiceS to say tnat the terms or the
acts necessarily imply recognition OF actually
ing governments aud that, In point OF fact, the gov
ernments thus recognized, IN some Important re-
spects still exist.
what has tnus been SAID generally describes with
sufficient accuracy the situation OF Texas. A pro-
vIsional governor OF the state was appointed by
the President in 1867 In 1865 governor was elected
by the people under the constitution Of that year;
at q subsequent date "a governor was appointed by
the commander Of the district Each oil the three
exercised executive functions ana actually repre-.
sented the State In the Executive Department. In
the case before us each has gwen his sanction to
the prosecution OF the suit and we 1nd no dim.
Guilty without Investigating the legal title OF
either 10 the executive ONCE in holding that the
sanction thus given sufficiently warranted tue action
OF the solicitor and counsel In benalf OF the state.
The necessary conclusion IL that the SUIT was instt
tuted AMI IL prosecuted by competent authority.
The question OF jurisdiction being thus disposed OF
we proceed to the consideration OF the merits, as
presented by the pleading and the evidence, and
the first question to be answered Is whether or
not the title OF the state To the bonds controversy
was dvested by the contract OF the military board
with White and Chids. That the bonds were the
property Of the State OF Texas on the lIth Of ian
M "A n.tin VIII N.
out the endorsement OF the Governor was repealed,
admits OF no question and ~ not denied. They came
into her possession and ownership through public
acts OF the general government and OF tue State,
winch gave notice to all the world OF the transaction
consummated by them, and we think 10 clear that
If state by public act Of her Legislature Imposes
restrictions upon all alienation OF her property, that
every person who takes transfer OF such prop
erty must be held Affected by notice OF
them. Alienation Ia disregard Of such restrictions
convey title In this case, however IL IS said
tnat the restriction imposed by the act Of 1851 was