OTD 1869: voting qualifications and public-school funding

On January 29, 1879, after agreeing to limit speeches to five minutes, the Reconstruction Convention adopted numerous provisions proposed for the Texas Constitution.

Among the specific provisions adopted on this date was art. III, sec. 1, relating to voting qualifications, which in its final form provided:

SECTION I. Every male person who shall have attained the age of twenty-one years, and who shall be (or who shall have declared his intentions to become) a citizen of the United States, or who is, at the time of the acceptance of this Constitution by the Congress of the United States, a citizen of Texas, and shall have resided in the State one year next preceding an election, and the last six months within the district or county in which he offers to vote, and is duly registered, (Indians not taxed excepted,) shall be deemed a qualified elector: and should such qualified electors happen to be in any other county, situated in the district in which he resides, at the time of an election, he shall be permitted to vote for any district officer; provided that the qualified elector shall be permitted to vote any where in the State for State officers; and provided further, that no soldier, seaman or marine in the army or navy of the United States, shall be entitled to vote at any election created by this Constitution.

The convention also debated a number of provisions in what was then article twelve, but ultimately became article nine of the 1869 Constitution, concerning public schools. The delegates specifically discussed school funding, including the creation of a school fund. An “annual poll tax of one dollar, on all male persons in this State, between the ages of twenty-one and sixty years” was imposed for the benefit of the school fund (see art. IX, sec. 6). The convention also agreed that the interest accruing on the school fund and derived from taxation for school purposes would be annually appropriated and “equally distributed among all the scholastic population of the State” (art. IX, sec. 9).

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OTD 1869: Tyler, Texas rejected as alternate site for Supreme Court of Texas

On January 28, 1869, the Reconstruction Convention debated a number of proposed amendments to the draft Texas Constitution, including several provisions in article V, concerning the judiciary. The draft called for the Supreme Court to hold its sessions “at the capital of the State.” The Convention rejected proposals to amend this provision to also permit the Supreme Court to meet “at Tyler, Smith county” or “at such other points as the Legislature may select.”

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OTD in 1869: A Minority Report Is Presented, and Debate on the Constitution Begins

On January 27, 1869, the Reconstruction Convention approved the printing of the report prepared by the committee assigned to revise the engrossed constitution, and the delegates then cleared the floor of visitors began to discuss those provisions that had not been revised by the committee.

But before that process began, the Convention received a report from a 4-member minority of the committee. The minority report is interesting reading. It provides some contemporary perspective on the surrounding circumstances of Reconstruction. It also comments on issues that still persist today, such as the 14th Amendment’s effect on citizenship standards (per this report, “every person born within our national limits”), and school finance. On the latter subject, the minority emphasized the importance of the matter: “It is true that if we would perpetuate the principles of a free constitution, the people must be educated, so that they may learn virtue, administer justice and practice morality. [¶] A people thus educated will each be a sentinel to guard the temple of liberty. They will watch with jealous care every approach to undermine the principles of our free constitution.”

The minority report:

Austin, Texas, January 26, 1869.

Hon. E. J. Davis,
President of the Reconstruction Convention:

SIR: The special committee of eleven, to whom was referred the labor of revising and correcting the constitution as far as engrossed, and to present other articles and sections not engrossed, have devoted much time to the labor assigned them. Considering the amount and importance of labor to be performed, and the short time which has elapsed since the special committee was raised, your committee, it may well be presumed, are not prepared to present to the Convention a constitution as perfect in all its parts as they desired.

It is well known to the country that more than four months have been consumed in the attempt to frame a constitution for the State. Early in June of last year various committees were raised, charged with the duty of framing a constitution suited to the different departments of State government. The undersigned, a minority of committee, who presents this minority report, knows well that the standing committees of this body required, on an average, about six weeks, to consider and report the several parts of a constitution.

This question, above all others, has engrossed the attention of the best talent in the country, and yet it has not been solved to the satisfaction of the country.

The committee have carefully examined the engrossed constitution, and have made some slight verbal changes, not affecting the substance. The majority report, it is believed, will show the changes in language suggested and recommended. The undersigned would recommend the adoption of the suggestions made by the majority of the committee as to the verbal alterations aforesaid.

The undersigned would also recommend that special authority be conferred on district judges to grant writs of habeas corpus, as recommended in the majority report.

The minority of the committee agree also with the majority in recommending that the district attorneys shall be appointed by the Supreme Court and commissioned by the Governor.

Two plans have been presented for establishing a system of common schools. The system best adapted to attain ends so desirable would be to provide a fund, and for details, leave its execution to the Legislature. The minority of the committee herewith present what they believe to be a sufficient basis for the establishment of common schools in every county and precinct in the State.

The development of the future will open up the way to guide the legislator in the faithful execution of the general plan here presented.

There was a time in the history of this State when we could boast of having provided a munificent fund to enlighten and enlarge the mind of the youth of our once growing and prosperous State. But now we can only look on with regret at the ruin which has been wrought by the untoward results of war and hasty and ill advised legislation. The school fund has been squandered, and the youth of twelve years amidst the past eight years of distress have reached the years of discretion with but little cultivation of mind.

When we contemplate our present condition, with an empty treasury and impoverished people unable to bear the burthens of heavy taxation, we almost despair of being able to provide for the education of the rising generation. All we can do is to lay the foundation as broad as our limited means will permit. It is true that if we would perpetuate the principles of a free constitution, the people must be educated, so that they may learn virtue, administer justice and practice morality.

A people thus educated will each be a sentinel to guard the temple of liberty. They will watch with jealous care every approach to undermine the principles of our free constitution.

The results of war have forced on us political questions the most difficult to solve. He who says that he finds no impediments in his pathway will not be instructed by this minority report. He is presumptuous, and has reached the climax of folly. At the close of actual hostilities between the North and South we found ourselves in the position of alien enemies, our substance gone, and our government overturned.

There was not a man in our midst to wield the sword of justice, guided by law, until the conqueror extended to us a helping hand. The late rulers who controlled when dark cloud overshadowed our country, at the approach of a victorious army, fled and took refuge in foreign lands.

Soon afterwards executive clemency came, and a proclamation of amnesty and pardon greeted us as a messenger of peace. The thirteenth amendment to the Constitution of the United States was the great seal of the nation consecrating the late slave to freedom. But the sagacious statesmen saw the necessity of another amendment, which defines who are citizens of the republic. This includes every person born within our national limits.

It is apparent, from these recitations from the history of the times, the object of the Government was to win back, and not to oppress, a people who had disputed every inch of ground on a hundred battlefields with the mighty armies of the Republic.

It was for the conqueror to propose terms of peace and restoration to the full enjoyment of liberty, and it was for us to accept.

By a careful examination of the fourteenth amendment, it will be found that the question of suffrage is left with the States, at least so far as voting for State officers is concerned.

By the very terms of this amendment a certain class of persons who are declared to be citizens, are denied the right to hold office, State or Federal. This was not intended as a punishment upon this class of our citizens, but as a security to good order and peace in the country. The wisdom of the framers of the constitution of 1789 foresaw the necessity of requiring of judges and State legislators an oath to support the Constitution of the United States. This is an oath of allegiance and its obligations are to reach beyond the term of office. Whatever may have been the construction we placed on this oath, it is now understood that its obligation is perpetual. It was not regarded as safe to entrust the powers of State in the hands of those who had broken their faith. But it was not intended that the bar should be perpetual, but the promise of complete restoration was held out in the hope that the errors of the past would all be blotted out in the performance of good works. Thousands have been relieved of all political disability, and none have the crime of rebellion resting upon them.

Whatever else may be said of Andrew Johnson, in his proclamations of amnesty he was the true representative of magnanimous policy. We know there is a few who would willingly humiliate and degrade those of their own kindred and blood who dared to differ with them in their notions and contracted theories of government. But the mass of the people partake largely of the spirit of the nation. No threatenings are breathed to terrify a people already distressed by the devastating hand of war. Adopting a liberal and gracious policy, men of enlarged views offer the olive branch of peace. He is a poor political philosopher who has not seen that our government can not afford to change its Republican theory and adopt one founded on proscription, entailing humiliation upon the great bulk of the white inhabitants of the State.

No stable Republican government can long maintain its self respect if it should pursue a policy at war with the very theory upon which free government rests. The most superficial observer, upon a candid and fair examination of the policy of Congress to rehabilitate our State governments, has failed to discover the enlightened policy inaugurated.

The object of the nation is to the more firmly establish its representative theory. Those who are taxed and bear the burdens of government ought to be heard and represented in every department of State. The policy referred to, the action of the government, the letters and speeches of the wisest statesmen, are at war with the doctrine of proscription. It is not founded in justice or mercy. Instead of being the harbinger of peace, it comes freighted with poison more deadly than the Upas tree. It sows the seeds of discord, producing the fruits of bloodshed and all the ills to which humanity is heir.

The history of all the rebellions, of all the most noted revolutions, beginning with that of Oliver Cromwell down to the last one, and the greatest one in our country, shows that no such proscription as many propose was ever adopted.

A liberal policy toward the people will fill the Republican ranks with as good and pure men as any of which it can now boast. But a policy especially designed to perpetuate power in the hands of the few at the expense of the many, ought to meet an early grave, and so deep that the hand of resurrection will never reach it.

The minority are opposed to depriving the freedmen of any right, civil or political, to which he is entitled, and are equally opposed to depriving the white population of their equality before the law. Equal political rights to the adult citizen, of whatever nation, race or color, is the spirit of the government, and will lay a sure foundation for peace, and as a consequence for general prosperity. The minority herewith present an ordinance upon the subject of the elective franchise, which they believe ought to commend itself to every patriot in the land. Also the oath of office, which affords every safeguard contemplated by the Fourteenth Amendment to the Constitution of the United States; also an ordinance upon the subject of the declarations passed by this Convention, and other declarations as substitutes; and, in conclusion, say they do not endorse the majority report further than herein stated, or as set forth in the majority report.

Having but a few hours within which to consider this report, the minority can only present their views in this broken form.

Respectfully submitted,

B. W. GRAY,
A. M. BRYANT, of Grayson,
A. BUFFINGTON,
THOMAS KEALY, Denton.

The Upas Tree

#OTD The Reconstruction Convention Resolved to Focus on Framing a Texas Constitution

On January 25, 1869, the Reconstruction Convention adopted the following resolution:

WHEREAS, Matters of general legislation have already accumulated to a very considerable extent upon this Convention; and

WHEREAS, It is evident that more business of the same nature will be presented; therefore,

Resolved, That this Convention will not entertain the consideration of any new business of a legislative character until all the business now before the Convention, including the framing of a constitution, be disposed of.

Resolved, further, That to expedite business and perfect our labors as soon as possible, this Convention shall have a morning and evening session, the former to begin at half-past nine o’clock, the latter at half-past seven o’clock, to take effect the twenty-seventh instant.

The following day, January 26, 1869, another resolution was adopted:

Resolved, That no adjournment of this body take place until a constitution shall have been perfected and an ordinance framed submitting the constitution to the people, for ratification or rejection.

Resolved, further, That no business shall be in order other than the formation of a constitution, until the same shall have been completed.

A majority of the Committee on the Constitution was then instructed to report that evening, at 7:30 pm, but at that time there was no quorum, and the convention eventually adjourned until the next day.

Inauguration of the Governor (Tex. Const. art. IV, sec. 4)

Today Governor-elect Greg Abbott will be sworn into office, on the date specified by the Texas Constitution. It currently provides, in Article IV, section 4, that the Governor “shall be installed on the first Tuesday after the organization of the Legislature, or as soon thereafter as practicable, and shall hold his office for the term of four years, or until his successor shall be duly installed.” The possibility of inaugurating the governor “as soon thereafter as practicable” allows for flexibility in the event of an election contest, which would be decided by the Legislature pursuant to Article IV, section 3.

In the 1845 Constitution, Article V, section 3 initially specified that the returns from an election for governor would be directed to the Speaker of the House, who would open and publish them during the first week of the new session of the legislature. The elected governor would then hold office “from the regular time of installation, and until his successor shall be duly qualified.” (Art. V, sec. 4.) These provisions carried forward into the Constitution of 1861.

The Constitution of 1866 set the date for the governor’s inauguration as “the first Thursday after the organization of the Legislature, or as soon thereafter as practicable.” (Art. V, sec. 4.) The same date was set by the Constitution of 1869 (Art. IV, sec. 4), but it was changed to the first Tuesday after organization of the Legislature in the Constitution of 1876 (Art. IV, sec. 4). This section of the Constitution was amended in 1972 to change the length of the governor’s term from two years to four, but the provision for the inauguration date remained unchanged.

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In honor of MLK Day: A Short History of Equal Rights Provisions in the Texas Constitution

In the famous “I Have a Dream” speech of Rev. Martin Luther King, Jr., he referenced the U.S. Declaration of Independence and Constitution, and their promises of equal rights for all men. He referenced these documents as a “promissory note” guaranteeing “the unalienable rights of life, liberty and the pursuit of happiness.” He proclaimed, “I have a dream that one day this nation will rise up, live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’”

The constitutions of Texas have acknowledged the same principle, though history has shown that the vindication of those rights often has been far from the promise.

In the 1836 Constitution of the Republic of Texas, the first item in the Declaration of Rights stated: “All men, when they form a social compact, have equal rights, and no man or set of men are entitled to exclusive public privileges or emoluments from the community.”

The reference to “All men” was modified in the 1845 Constitution of the State of Texas, where section 2 of the Bill of Rights provided: “All freemen, when they form a social compact, have equal rights; and no man or set of men is entitled to exclusive, separate public emoluments or privileges, but in consideration of public services.” (Emphasis supplied.) The 1845 Convention formed a Committee on General Provisions which was tasked with reporting a proposed “Bill of Rights,” and the precise language ultimately included in the 1845 Bill of Rights was included in the version reported by the committee on July 11, 1845. A substitute version of section 2 offered on July 16, 1845 would have substituted the language “all citizens have equal rights, and no man, or class of men is entitled to exclusive, separate emoluments or privileges,” but the substitute was rejected.

The 1845 “equal rights” provision was maintained, verbatim, in the 1861, 1866 1869 Constitutions. The text was very slightly modified in the 1876 Constitution to its present formulation (Art. I, sec. 3): “All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

Article I, section 3 was supplemented in 1972 by the adoption of the Equal Rights Amendment as section 3a of the Texas Bill of Rights. It made explicit what should have been implied (indeed, was “unalienable” and “self-evident”) from the beginning: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.”

MLK Dream

President Davis reports an “obstacle” to progress at the Reconstruction Convention

Further reflecting the continuing inaction of the Reconstruction Convention on its primary task of revising the Texas Constitution, on this date in 1869 the president of the convention, Edmund J. Davis, directed that the following communication be read. The previous day he had sent it to General Edward R.S. Candy, the Union general who then commanded the Fifth Military District (by that time consisting of only Texas):

HALL OF THE CONVENTION,
Austin, Texas, January 14, 1869.

GENERAL: I have to call your attention to an obstacle which has prevented the progress of business in this Reconstruction Convention.

Under the rules of the Convention fifteen or more members can sustain a “call of the Convention,” as it is termed. When this is done the business under consideration is suspended and absent members are sent for. All members who are on the roll of the Convention are considered as belonging to the body, though they may not have been here since the meeting on the seventh of December, and unless they have been excused on account of sickness or other good cause they must be brought in.

Four members (Messrs. W. W. Mills, of El Paso, Presidio county, H. H. Foster, of Colorado county, C. E. Coleman, of Harrison and Panola counties, and G. Yarborough, of Upshur and Wood counties,) have not been in attendance since the Convention met, on the seventh December.

With regard to the absence of Messrs. Coleman and Foster no explanation has been given, and they are believed to have left the State. I am informed that Mr. Yarborough (who is of advanced age) is at home in a distant county, and is quite infirm, and does not probably ever intend to return to the Convention.

Mr. Mills was said to have intended being present at this session, and I believe he has written here to that effect; but we are now in the sixth week of this session, and he is still absent. His residence (El Paso) is too distant for the possibility of getting him here within any reasonable time.

Two or three weeks of this session have been wasted and business blocked, under “call of the Convention,” to send for these and other members, and we are at this moment under a suspension of business for the same reason.

All other members absent have either resigned or been excused for cause. Therefore members cannot, in my opinion, be brought here, and the necessity of the case requires some prompt remedy.

There is some doubt whether the Convention would be authorized to declare these offices vacant and, accordingly, I think it my duty to submit to the General Commanding the consideration of some remedy that he may deem himself authorized to apply to the case, and thus enable us to bring our duties to a close.

Respectfully,
EDMUND J. DAVIS,
President of the Convention.

To Major-General E. R. S. Canby, U. S. A.,
Commanding Fifth Military District,
Austin, Texas.

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Prohibition of “cruel or unusual punishment” in the Texas Constitution (art. I, § 13)

Dating back to the Constitution of the Republic of Texas (1836), every version of the Texas Constitution has prohibited “cruel or unusual” punishments. See, e.g., Tex. Const. art. I, § 13. This formulation is slightly different than the Eighth Amendment to the U.S. Constitution, which prohibits punishments that are “cruel and unusual.”

The “cruel or unusual” formulation is not uncommon among the states—it had been adopted by five states (Delaware, Maryland, Massachusetts, New Hampshire, and North Carolina) even before the adoption of the Eighth Amendment. However, the published journals and debates from the constitutional conventions in Texas do not shed any light on why Texas adopted the disjunctive formulation (“or”) instead of the conjunctive (“and”).

Appointment of the Reconstruction Convention’s special committee on revision, including former slave Charles W. Bryant

On January 13, 1869, the day after the Reconstruction Convention approved a resolution to appoint an 11-person committee to expedite work on the revised Texas constitution, the membership of the committee was announced to be:

Messrs. Gray, Whitmore, Carter, Buffington, Pedigo, Newcomb, Bryant of Grayson, Bryant of Harris, Kealy, Butler, Munroe.

The committee thus included the representative from Harris County, Charles W. Bryant, a former slave. The Handbook of Texas describes Bryant’s participation at the convention as follows:

Though he was a Radical Republican who supported Governor Edmund J. Davis in most instances, Bryant nevertheless opposed the ab initio proposal (see AB INITIO QUESTION), which would have invalidated all legislative enactments that occurred after the state’s secession from the Union. Bryant also favored the division of Texas into two or more states and supported constitutional provisions designed to prevent voter intimidation and fraud. He introduced resolutions that would have repealed railroad land grants and charters and prohibited convicted murderers from holding office in the state. He also secured a constitutional provision that legitimated black children born to slave parents. During the convention a mother accused Bryant of raping her eleven-year-old daughter. Although most Radicals supported Bryant’s denial, contending that moderate Republicans led by Andrew Jackson Hamilton fabricated the charges, the convention voted by a margin of three to expel Bryant. He was jailed briefly, but the child’s mother later dropped the charges against him.

Charles W Bryant