Resolution on the scope of the 1868 Convention’s authority

On this day in 1868, the committee on State Affairs made its report in response to a proposed resolution referred to it five days earlier, on June 5, 1868. That resolution had stated:

Resolved, 1st, That this Convention was called by, in pursuance of, and derives its powers, whatever they may be, solely from the Laws of Congress, known as the Reconstruction Acts.

Resolved, 2d, That this Convention, under said Laws, possesses no Legislative powers beyond the formation of a Constitution for the State of Texas.

The committee’s report, delivered on June 10, took a broader view of the Convention’s authority, which was a prelude to the Convention spending most of its time on ancillary matters and deferring most of the work on a new Constitution until a later session in 1869:

To the Hon. E. J. DAVIS,
President of the Convention:

The undersigned, Committee on State Affairs, to whom was referred a resolution defining and declaring the powers which this Convention may legitimately exercise, have had the subject matter of the resolution under consideration, and ask leave to submit the following report, as the result of their labors.

Your committee regard the questions presented as of great importance; yet, it is believed, the questions are not difficult of solution.

As declared in the first section of the proposed resolution, the right of this Convention to assemble depends wholly on the provisions of what is known as the Reconstruction Acts of Congress. At the close of the war, the President of the United States, in his proclamation, declared that the States in rebellion had deprived themselves of all civil government. There was not an officer within our borders authorized to execute civil law.

Any one at all acquainted with the history of the past knows that it is the established policy, as well as theory, of the National Government, that there exists no power, except in the political authority, to reconstruct the State government recently waging war.

Hence it follows, as a self-evident proposition, that this Convention is assembled here to-day in obedience to, and by the authority of the Government of the United States, as manifested through its officers and agents.

The second proposition contained in the proposed resolution, is as to the powers of this Convention.

By the fourth section of the first supplementary act, touching the reconstruction of the States recently in rebellion, among other things it is declared that “the Commanding General, within sixty days from the date of election, shall notify the delegates to assemble in Convention, at a time and place to be mentioned in the notification; and said Convention, when organized, shall proceed to frame a constitution and civil government according to the provisions of this act and the act to which it is supplementary.”

The language quoted from the act of Congress is in the nature of a command directed to the Convention, when engaged in the work of framing a constitution and organizing civil government; and it is only a constitution thus framed which this Convention is authorized to submit to the registered voters for ratification.

There is but one limit on the powers of this Convention, in framing a constitution, that is, that it be Republican in form, and the right to determine this question belongs exclusively to Congress. It was in aid of that provision of the Constitution of the United States which makes it the duty of the Government of the United States to guarantee to every State of the Union a Republican form of government, that the several reconstruction acts were passed. It is the opinion of your committee that Congress has conferred all necessary power on the Convention to frame a State constitution and civil government for Texas. It is believed that the acts of Congress do not limit the powers of this Convention.

It is apparent that this Convention may or ought to exercise just such power, and none other, as will result in the organization of a State government. Hence, your committee respectfully submit and recommend the adoption of the accompanying resolution, as a substitute for the original one under discussion. All of which a majority of the committee instruct me to report.

B.W. GRAY,
Chairman of Committee on State Affairs.

Resolved, 1st. That this Convention is assembled by the authority of and in obedience to the laws of the United States.

2d. That this Convention possesses the power to frame a Constitution and civil government for Texas, and that it is a question alone for this Convention to determine what ordinances, declarations and resolutions are necessary and proper to carry out the expressed will of Congress.

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