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on the 4th of February, adopted a resolution designating seven delegates to represent the state in the convention of seceding states at Montgomery, “in order," as the resolution declared, “ that the wishes and interests of the people of Texas may be consulted in reference to the constitution and provisional government that may be established by said convention."
Before the passage of this resolution the convention had appointed a committee of public safety, and adopted an ordinance giving authority to that committee to take measures for obtaining possession of the property of the United States in Texas, and for removing the national troops from her limits. The members of the committee, and all officers and agents appointed or employed by it, were sworn to secrecy and to allegiance to the state. Paschal's Dig., 80. Commissioners were at once appointed, with instructions to repair to the headquarters of General Twiggs, then representing the United States in command of the department, and to make the demands necessary for the accomplishment of the purposes of the committee. A military force was organized in support of these demands, and an arrangement was effected with the commanding general, by wbich the United States troops were engaged to leave the state, and the forts and all the public property, not necessary to the removal of the troops, were surrendered to the commissioners. Texas Reports of the Committee (Library of Congress), 45. These transactions took place between the 2d and the 18th of February, and it was under these circumstances that the vote upon the ratification or rejection of the ordinance of secession was taken on the 23d of February. It was ratified by a majority of the voters of the state.
The convention, which had adjourned before the vote was taken, reassembled on the 2d of March, and instructed the delegates already sent to the congress of the seceding states, to apply for admission into the confederation, and to give the adhesion of Texas to its provisional constitution. It proceeded, also, to make the changes in the state constitution which this adhesion made necessary. The words “ United States” were stricken out wherever they occurred, and the words “Confederate States” substituted; and the members of the legislature, and all officers of the state, were required by the new constitution to take an oath of fidelity to the constitution and laws of the new confederacy. Before, indeed, these changes in the constitution had been completed, the officers of the state had been required to appear before the committee and take an oath of allegiance to the Confederate States. The governor and secretary of state, refusing to comply, were summarily ejected from office. The members. of the legislature, which had also adjourned and reassembled on the 18th of March, were more compliant. They took the oath, and proceeded on the 8th of April to provide by law for the choice of electors of president and vicepresident of the Confederate States. The representatives of the state in the congress of the United States were withdrawn, and as soon as the seceded states became organized under a constitution, Texas sent senators and representatives to the Confederate congress.
In all respects, so far as the object could be accomplished by ordinances of the convention, by acts of the legislature and by votes of the citizens, the relations of Texas to the Union were broken up, and new relations to a new government were established for them. The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion, which these events made inevitable. During the whole of that war there was no governor, or judge, or any other state officer in Texas, who recognized the national authority. Nor was any
officer of the United States permitted to exercise any authority whatever under the national government within the limits of the state, except under the immediate protection of the national military forces. Did Texas, in consequence of these acts, cease to be a state? Or, if not, did the state cease to be a member of the Union?
$ 144. Of the union of the states.
It is needless to discuss, at length, the question whether the right of a state to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the constitution of the United States. 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 indissoluble if a perpetual union, made more perfect, is not?
$ 145. Of the perpetuity and indissolubility of the Union.
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 tbe 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 could be no such political body as the United States.” Lane County v. Oregon, 7 Wall., 76. Not only, therefore, can there be no loss of separate and independent autonomy to the states, through their union under the constitution, but it may be not unreasonably said that the preservation of the states, and the maintenance of their governments, are as much within the design and care of the constitution as the preservation of the Union and the maintenance of the national government. The constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the state. The act which consummated her admission into the C'nion was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other states was as complete, as perpetual and as indissoluble as the union between the original states. There was no place for reconsideration, or revocation, except through revolution, or through consent of the states.
$ 146. Ordinance of secession, and acts under it, void, and the state continued in the Union.
Considered, therefore, as transactions under the constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens
of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the state, as a member of the Union, and of every citizen of the state, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the state did not cease to be a state, nor her citizens to be citizens of the Union. If this were otherwise, the state must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation. Our conclusion, therefore, is, that Texas continued to be a state, and a state of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the national government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.
$ 147. What necessary to enable a state to sue in the supreme court.
But in order to the exercise by a state, of the right to sue in this court, there, needs to be a state government, competent to represent the state in its relations with the national government, so far at least as the institution and prosecution of a suit is concerned. And it is by no means a logical conclusion from the premises which we have endeavored to establish, that the governmental relations of Texas to the Union remained unaltered. Obligations often remain unimpaired while relations are greatly changed. The obligations of allegiance to the state and of obedience to her laws, subject to the constitution of the United States, are binding upon all citizens, whether faithful or unfaithful to them; but the relations which subsist while these obligations are performed are essentially different from those which arise when they are disregarded and set at nought. And the same must necessarily be true of the obligations and relations of states and citizens to the Union. No one has been bold enough to contend tbat, while Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation waging war upon the United States, senators chosen by her legislature or representatives elected by her citizens were entitled to seats in congress; or that any suit instituted in her name could be entertained in this court. . All admit that, during this condition of civil war, the rights of the state as a member and of her people as citizens of the Union were suspended. The government and the citizens of the state, refusing to recognize their constitutional obligations, assumed the character of enemies and incurred the consequences of rebellion.
$ 148. Power to suppress rebellion and reorganize the states, whence derived.
These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the state with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the national government. The authority for the performance of the first had been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obligation of the United States to guaranty to every state in the Union a republican form of government. The latter, indeed, in the case of a rebellion which involves the government of a state and for the time excludes the national authority from its limits, seems to be a necessary complement to the former. Of this, the case of Texas furnishes a striking illustration. When the war closed there was no government in the state except that which had been organized for the purpose of waging war
against the United States. That government immediately disappeared. The chief functionaries left the state. Many of the subordinate officials followed their example. Legal responsibilities were annulled or greatly impaired. It was inevitable that great confusion should prevail. If order was maintained, it was where the good sense and virtue of the citizens gave support to local acting magistrates or supplied more directly the needful restraints.
$ 149. Emancipation; status of the freedmen; restoration of the state government.
A great social change increased the difficulty of the situation. Slaves, in the insurgent states, with certain local exceptions, bad been declared free by the proclamation of emancipation; and whatever questions might be made as to the effect of that act under the constitution, it was clear from the beginning that its practical operation, in connection with legislative acts of like tendency, must be complete enfranchisement. Wherever the national forces obtained control the slaves became freemen. Support to the acts of congress and the proclamation of the president concerning slaves was made a condition of amnesty (13 Stat. at Large, 737) by President Lincoln in December, 1863, and by President Johnson in May, 1865. Id., 758. And emancipation was contirmed, rather than ordained, in the insurgent states by the amendment to the constitution prohibiting slavery throughout the Union, which was proposed by congress in February, 1865, and ratified before the close of the following autumn by the requisite three-fourths of the states. Id., 774, 775. The new freemen necessarily became part of the people, and the people still constituted the state; for states, like individuals, retain their identity though changed to some extent in their constituent elements. And it was the state, thus constituted, which was now entitled to the benefit of the constitutional guaranty. 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 before the rebellion, without a 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 conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the state.
$ 150. In the exercise of the power conferred by the guaranty clause, a discretion in the choice of means is necessarily implied.
In the exercise of the power conferred by the guaranty clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the resstoration of the state to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanctioned by the constitution. It is not important to review, at length, the measures which have been taken, under this power, by the executive and legislative departments of the national government. It is proper, however, to observe that almost immediately after the cessation of organized bostilities, and while the war yet smoldered in Texas, the president of the United States issued his proclamation appointing a provisional governor for the state, and providing for the assembling of a convention, with a view to the re-establishment of a republican government, under an amended constitution, and to the restoration of the state to her proper constitutional relations. A convention was accordingly assembled, the constitution amended, elections held, and a state government, acknowledging its obligations to the Union, established.
$ 151. So long as the war lasted the president could institute temporary government within hostile territory occupied by federal troops.
Whether the action then taken was, in all respects, warranted by the constitution, it is not now necessary to determine. The power exercised by the president was supposed, doubtless, to be derived from his constitutional functions, as commander-in-chief; and, so long as the war continued, it cannot be denied that he might institute temporary government within insurgent districts, occupied by the national forces, or take measures, in any state, for the restoration of state government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws.
$ 152. The power to carry into effect the clause of guaranty is a legislative power and resides in congress.
But the power to carry into effect the clause of guaranty is primarily a legislative power, and resides in congress. “Under the fourth article of the constitution, it rests with congress to decide what government is the established one in a state. For, as the United States guaranty to each state a republican government, 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 a case from Rhode Island (Luther v. Borden, 7 How., 42), arising from the organization of opposing governments in that state. And we think that the principle sanctioned by it may be applied, with even more propriety, to the case of a state deprived of all rightful government by revolutionary violence, though necessarily limited to cases where the rightful government is thus subverted, or in imminent danger of being overthrown by an opposing government, set up by force within the state.
§ 153. The authority of the complainants to bring this suit was derived from the recognized government of Texas.
The action of the president must, therefore, be considered as provisional, and, in that light, it seems to have been regarded by congress. It was taken after the term of the thirty-eighth congress had expired. The thirty-ninth congress, which assern bled in December, 1865, followed by the fortieth congress, which met in March, 1867, proceeded, after long deliberation, 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, which have been so far carried into effect, that a majority of the states which were engaged in the rebellion have been restored to their constitutional relations, under forms of government adjudged to be republican by congress, through the admission of their “senators and representatives into the councils of the Union."
Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts. But it is important to observe that these acts themselves show that the governments wbicli had been established and had been in actual operation under executive direction, were recognized by congress as provisional, as existing and as capable of continuance. By the act of March 2, 1867 (14 Stat. at Large, 428), the first of the series, these governments were, indeed, pronounced illegal and were sub