Litchfield enquirer., 1869-04-22

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 the acts of Congress and the proclamation
 of the President concerning slaves wa 1 made condition of amnesty, l13 U. s. St. 737, ] by President Lincoln, in December
 1863, and by President Johnson, in May
 1865. 13 U. s. St.. 758.) And enamel
 patton was confirmed rather than ordain ed, by the amendment to the Constitution
 prohibiting slavery throughout the Union which was proposed by Congress in Feb
 ruary, 1865, and ratified before the close O. the following autumn by the requisit.
 three -fourths of the States. q3 D. s. St. TIA, 775. Ibe neaO Js'eensen necessarily De
 came q part of tbe people, and the people stil 1 constituted the State, for States, like indi viduals, retain their identity, though chan ged to some extent in their constituent ell
 ements. And it was the State thus con stitututed which was now entitled to the benefit of the constitutional guarantee.
 There being. then, no government in Texas, in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a Government But the restoration of the Government which existed betore the re. bellion, without new election of officers was obviously impossible; and before any such election could be properly held it was necessary that the old Constitution should receive such amendments as would con. form it's provisions to the new conditions created by emancipation, and afford ade- quate security to the people of the State. In the exercise of the power conferred by the guarantee clause, as in the exercise o1 every other constitutional power, dis. cretlon in the choice of means is necessa
 rily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power confer red through the restoration of the State to its constitutional relations, under repub- ican form of government, and that no acts be done, and no authority existed, which IS either prohibited or unsanctioned by the Constitution. ta 'e4a
 It is not important to review at length the measures which have been taken under this power by the Executive and Legisla- tive Departments of the National Govern ment. It is proper, however, to observe that almost immediately after the cessation of organized hostiities, and while the war yet smouldered in Texas, the President of the United States issued his proclaim ation appointing Provisional Governor for the State and providing for the assembling of Convention, with view to the re-estab- lishment of a republican government under an amended Constitution and to the res. toration of the State to her proper consti- tutienal relations. A convention was &C., cordingly assembled, the Constitution amended, elections held, and State gov
 ernment. acknowledging its obligations to the Union, established. Whether the ac- ton then taken was in all respects warrant ed by the constitution, it is not now neces- sary to determine. The power exercised by the President was supposed, doubtless, to be derived from his constitutional func- tions as Commander in Chief, and so long ss the war continued it cannot be denied that he might institute temporary govern mont within insurgent districts oc- cupied by the national forces, or take measures in any State for 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 tke poaser to carS into effect the clause of guaranty is pri- ndrily legisluiue power aud resides in Congress. ''Under the fourth article of the Constitution it rest with Congress to de- eide what Government is the established government in 8 state. For, as the US. guar. antee to each State 8 republican govern ment, Congress must necessarily decide what Government is established in the State before it can determine whether it is republican or not" This is the language of the late Chief Justice speaking for this Court in . case from Rhode Island, Muthel os. Borden, ' How, A. arising from the organization of opposing Governments in that State. And we think that the princi. pie sanctioned by it may be applied with even more propriety to the case of State deprived of all rightful Government by rev. olutionary violence though necessarily linn. tied to cases where the rightful government is thus oYerthrown, or in danger of be-
 ing overthrown, by an opposing Govern. ment set up by force within the State. The action of the President must, therefore, be considered as provisional, and in that line it seems to have been regarded by Con. gress. It was taken after the term of the Thirty eighth Congress had expired. The Thirty-ninth Cangress, which assembled ir December 1865, followed by the Fortieth Congress which met in March, 1867, pro
 ceeded, after long deliberation, to adop
 various measures for reorganization ane restoration. These measures were embed jed in proposed amendments to the Con stitution, and in the acts known as the re
 construction acts, which have been so fal carried into effect that majority of ths States, which were engaged in the rebel lion, have been restored to their oonstitu tional relations under forms of government
 adjudged to be republican by Congress through the admission of their Senator. and Representatives into the councils o
 the Union." Nothing in the case before us requires the Court to pronounce judge
 ment upon the constitutionality of any par
 ticular provision Of these acts. But is ii important to observe that those acts them selves show that the Governments whict had been established, and had been 1T actual operation under Executive -direc
 hon, were recognized by. Congress as pro
 visional, as existing, and as capable of con tinuance. sa'S sas 1a ssef1
 The Court decides, also, that while tn. rebel government was the only de faco au
 thority in the State some of it's acts mus
 be recognized as of binding authority:
 It is not necessary to attempt any exacl definitions within which the acts of such , State Government must be treated as valid or invalid. It may be said, perhaps witt sufficient accuracy, that acts necessary tt peace and good order among citizens. such for example, as acts sanctioning and pro tecting marriage and the domestic relation, governing the course of descents, regulat f- E