OTD 1866: A minority report on the disputed “ab initio” question

On February 23, 1866, a minority of the committee on the Condition of the State reported their disagreement with a majority on the hotly debated question of whether the secession of Texas should be declared null and void, or declared void “ab initio,” i.e. a null act from the beginning. Represented in the convention by William E. Jones, a former associate justice of the Supreme Court of the Republic of Texas, the minority’s proposed substitute read as follows:

AN ORDINANCE,
Declaring Null and Void the Ordinance of Secession,

We, the People of Texas, by delegates in Convention assembled, acknowledging the supremacy of the Constitution of the United States, and laws made in pursuance thereof, and disclaiming the right of secession and recognizing an ordinance entitled “An Ordinance to dissolve the union between the State of Texas and the other States united under the compact styled “‘The Constitution of the United States of America,’” adopted by a Convention, at Austin, on the first day of February, 1861, to be in contravention to the constitution of the United States, do ordain and declare the same to be null and void ab initio.

#OTD 1866: Constitutional convention considers prohibition on ministers serving in the legislature

On February 20, 1866, the constitutional convention referred a number of proposed revisions to various committees, including proposals concerning bail, the removal of officers appointed by the Governor, the election of justices of the Supreme Court, and the article on slavery.

The committee on the Legislative Department reported its recommendation relating to a proposal to delete a provision that appeared in both the 1845 and 1861 Constitutions, which prohibited religious ministers from serving in the legislature. That proposal ultimately was rejected, and in Article III, section 26, the 1866 Constitution provided:

Ministers of the gospel being by their profession dedicated to God and the care of souls, ought not to be diverted from the great duties of their functions; therefore, no minister of the gospel, or priest of any denomination whatever, shall be eligible to the Legislature.

Update: Thanks to Texas Bar Today for naming this one of the top blogs of the week!

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OTD 1866: A proposal to replace the 1861 constitutional provision on “Slaves” with new provisions for “Freedmen”

On February 17, 1866, the Unionist and former state district judge John Hancock (pictured below), chairman of the committee on the General Provisions of the Constitution, reported to the convention in favor of striking out and replacing the text of Article VIII of the 1861 Constitution, which related to slavery.

As background, the General Provisions of 1836 Constitution provided as follows for the newly established Republic of Texas:

SEC. 9. All persons of color who were slaves for life previous to their emigration to Texas, and who are now held in bondage, shall remain in the like state of servitude, provide the said slave shall be the bona fide property of the person so holding said slave as aforesaid. Congress shall pass no laws to prohibit emigrants from the United States of America from bringing their slaves into the Republic with them, and holding them by the same tenure by which such slaves were held in the United States; nor shall Congress have power to emancipate slaves; nor shall any slave-holder be allowed to emancipate his or her slave or slaves, without the consent of Congress, unless he or she shall send his or her slave or slaves without the limits of the Republic. No free person of African descent, either in whole or in part, shall be permitted to reside permanently in the Republic, without the consent of Congress, and the importation or admission of Africans or negroes into this Republic, excepting from the United States of America, is forever prohibited, and declared to be piracy.

When Texas was admitted to the Union, the 1845 Constitution included a new Article VIII, entitled “Slaves,” which read:

SEC. 1. The legislature shall have no power to pass laws for the emancipation of slaves without the consent of their owners, nor without paying their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated. They shall have no power to prevent emigrants to this State from bringing with them such persons as are deemed slaves by the laws of any of the United States, so long as any person of the same age or description shall be continued in slavery by the laws of this State: Provided, That such slave be the bona fide property of such emigrants: Provided, also, That laws shall be passed to inhibit the introduction into this State of slaves who have committed high crimes in other States or Territories. They shall have the right to pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge. They shall have full power to pass laws which will oblige the owners of slaves to treat them with humanity; to provide for their necessary food and clothing; to abstain from all injuries to them, extending to life or limb; and, in case of their neglect or refusal to comply with the directions of such laws, to have such slave or slaves taken from such owner and sold for the benefit of such owner or owners. They may pass laws to prevent slaves from being brought into this State as merchandise only.

SEC. 2. In the prosecution of slaves for crimes of a higher grade than petit larceny, the legislature shall have no power to deprive them of an impartial trial by a petit jury.

SEC. 3. Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offence had been committed upon a free white person, and on the like proof, except in case of insurrection by such slave.

Article VIII was revised as follows in the 1861 Constitution:

SEC. 1. The Legislature shall have no power to pass laws for the emancipation of slaves.

SEC. 2. No citizen, or other person residing in this State, shall have power by deed, or will, to take effect in this State, or out of it, in any manner whatsoever, directly or indirectly, to emancipate his slave or slaves.

SEC. 3. The Legislature shall have no power to pass any law to prevent immigrants to this State, from bringing with them such persons of the negro race as are deemed slaves by the laws of any of the Confederate States of America; provided, that slaves who have committed any felony may be excluded from this State.

SEC. 4. In the prosecution of slaves for crimes of a higher grade than petit larceny, the Legislature shall have no power to deprive them of a trial by jury, except in cases arising under the laws concerning insurrection of slaves.

SEC. 5. Any person who shall maliciously dismember, or deprive a slave of life, shall suffer such punishment as would be inflicted in case the like offence had been committed upon a free white person, and on the like proof; except when such slave has committed, or attempted to commit, a rape on a white female, or in case of insurrection of such slave.

SEC. 6. The Legislature shall have power to pass laws which will oblige the owners of slaves to treat them with humanity.

When Chairman Hancock made his report to the convention on February 17, 1866 , Article VIII was proposed to be replaced with the following text:

Sec. 1. African slavery, as it heretofore existed, having been terminated within this State by the government of the United States, by force of arms, and its restablishment being prohibited by the amendment to the Constitution of the United States, it is declared that neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in this State; and freedmen and their descendants shall be protected and secured in their rights of person and property by appropriate legislation; they shall have the right to contract and be contracted with, to sue and be sued, to acquire, hold and transmit property, and be subject to no penal laws based upon inequality or distinction of race.

Sec. 2. Freedmen and their descendants shall not be prohibited, on account of color or race, the right to testify as witnesses in any case, civil or criminal, involving right of or injury to any of them in person or property; the credibility of their testimony to be determined by the court or jury hearing the same: Provided, that, in all cases in which they may be heard as witnesses against a white person, it shall be in open court, and the latter shall have the right to testify in his own behalf, and they shall have the same right when testified against by a white person. The Legislature shall have power to authorize them to testify as witnesses in all cases under the regulations herein set forth.

The report was read, and 500 copies of the provision were ordered printed, but the convention took no other action on the proposal that day. The finally approved version of the 1866 Constitution contained a substantially similar provision as Article VII, entitled “Freedmen.”

SECTION 1. African slavery, as it heretofore existed, having been terminated within this State, by the Government of the United States, by force of arms, and its re-establishment being prohibited, by the amendment to the Constitution of the United States, it is declared that neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist in this State; and Africans and their descendants, shall be protected in their rights of person and property by appropriate legislation; they shall have the right to contract and be contracted with; to sue and be sued; to acquire, hold and transmit property; and all criminal prosecutions against them, shall be conducted in the same manner as prosecutions, for like offences, against the white race, and they shall be subject to like penalties.

SEC. 2. Africans and their descendants shall not be prohibited, on account of their color or race, from testifying orally, as witnesses, in any case, civil or criminal, involving the right of, injury to, or crime against any of them in person or property, under the same rules of evidence that may be applicable to the white race; the credibility of their testimony to be determined by the court or jury hearing the same; and the Legislature shall have power to authorize them to testify as witnesses in all other cases, under such regulations as may be prescribed, as to facts hereafter occurring.

John Hancock

OTD 1866: A proposal to expand the Texas Supreme Court from 3 to 5 justices

Under the 1845 and 1861 constitutions of Texas, the Supreme Court had three justices. On February 13, 1866, a proposal to expand the Court to five justices was introduced by Unionist delegate Isaiah A. Paschal. His proposed resolution read:

Resolved, That the Judiciary Committee be instructed to take into consideration the propriety of amending the Constitution so as to increase the number of Judges of the Supreme Court to five, who shall hold the court at but one place, and be in permanent session, except in special vacation.

Also, consider the propriety of compelling the District Judges to hold their courts four times a year in each county, and to exercise original and exclusive jurisdiction over executors, administrators and guardians, under such rules as the Legislature may prescribe.

The resolution was adopted by the convention, and the Constitution eventually adopted in 1866 did expand the Supreme Court to five justices.

OTD 1866: resolutions about Texas courts referred to Committee on the Judiciary

On February 11, 1866, the constitutional convention referred several matters concerning the courts to the newly formed Committee on the Judiciary, chaired by future Texas Governor O.R. Roberts of Smith County (pictured below).

By one resolution, the convention instructed the Committee “to take into consideration the present condition of the records, papers, library, and furniture of the Supreme Court, and that they report at the earliest practicable period what action, if any, this Convention should take in the premises.”

In a separate resolution, the convention further instructed the Committee to “take under consideration and report upon the propriety of establishing a separate Criminal Court.”

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OTD 1866: Delegates swear to support the US Constitution and receive a message from Governor A.J. Hamilton

On February 10, 1866, 81 delegates to the post-Civil War Texas constitutional convention swore an oath to support the Constitution of the United States.

The convention also received a lengthy message from Governor A.J. Hamilton. In addition to commenting on the “amnesty oath” and other qualifications for electing and serving as delegates to the convention, Governor Hamilton addressed the task of revising the state constitution. In part, he wrote:

To what extent it is expected by the people, or may be thought proper by you, to remodel the Constitution of the State, I do not know. No one, however, can doubt that it is expected by the President, the Congress, and the people of the United States, that such changes will be made in the organic law of this State, as will make it conform, in its spirit and principles, to the actual changes that attended the progress of the late war, and followed the overthrow of the rebellion. There can be no doubt that it is expected by the country that you will embrace within the scope of your action, a clear and explicit denial, in such form as may seem to you to be proper, of the right of Texas to secede or withdraw from the Federal Union: a right assumed by an unauthorized and revolutionary body of men in 1861, sitting in this Hall: a right then invoked to justify rebellion against the free and parental government instituted by the patriot sires of ’76, and justly esteemed as the best hope of freedom in the world. It cannot be thought unreasonable that the people of the United Slates should desire a formal and solemn recantation of a political heresy so dangerous to their peace and liberties. It may be said that no act of this, or any other body of men in this State, can destroy the right, if it exists, or settle the question in any authoritative manner: and this may be urged as a reason for declining to take action upon it. It may be well to bear in mind that the people of the United States are not looking to this body for a settlement of this question. The question was transferred, by action of the Southern people, from the tribunal of reason to the field of battle, and has been settled there, by a series of events, the memory of which is likely to endure as long as the American name itself. The country now looks to this body for evidence of an acquiescence in that settlement, as it has been made, and for such further action as will bind the people of Texas, in the most solemn manner, to make that acquiescence perpetual. Too much has been predicated upon the doctrine of the right of secession, too much dared and done by the people of the South to maintain it, to justify the people of the United States in accepting silence on our part as an admission of error. They are not likely to be so credulous and if they were disposed to be so, the utterances of some of the leading presses of the State, during the past three months, would enlighten them.

* * *

It is not now necessary to controvert he opinions of those who maintained that the proclamation of the President of the United States, declaring the freedom of the slaves of the South was but a military order, which was no longer operative after the cessation of actual hostilities. The wise and beneficent spirit of that proclamation has, by the voice of the American people, assumed the form of Constitutional law. It is now the supreme law of the land that slavery, or involuntary servitude, except for crime, whereof the party shall have been duly convicted, shall not exist in any State or Territory of the Union. I doubt not that you will concur with me that this radical change in the condition of those persons in our State who were formerly in slavery ought to be fully recognized in the Constitution, and their new condition provided for. It is, of course not now necessary to incorporate in the Constitution of the State a provision against the future existence of slavery in Texas, since, by virtue of the amended Constitution of the United States, it cannot exist here. But it may nevertheless be eminently proper for you to manifest, in some unmistakable manner, if not your approbation of great act of the nation, at least your cheerful acquiescence in it.

* * *

The most important questions, gentlemen, to which you will be required, by the peculiar circumstances in which we are placed, to direct your attention, grow out of the emancipation of those who were formerly in a state of bondage, and who still remain in our midst. Our former slaves are declared by the Constitution of the United States to be free. Shall we treat that declaration as a mere form of words or shall we receive it as a living truth? Shall we repose upon the postulate that the act of emancipation is only a wrong done to us, or shall we question honestly with ourselves concerning its significance? It seems to me that the events of the past five years should abate, somewhat, our pride of opinion. We have seen a war, inaugurated for the perpetuation of slavery, result in the declaration, by the most powerful of the nations of the earth that it shall no longer exist. Let us not deceive ourselves by the supposition that the nation will fail to make that declaration good, or to redeem, fully, the high obligations which it has assumed in this behalf, before the civilized world.

In my judgment, here could not be devised a more successful mode of procrastinating our return to our original position in the Union, than to deny to the freedmen, in our midst, those civil rights and privileges, without which, to call them free would be only “to keep the word of promise to the ear, and break it to the hope.”

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OTD 1866: J.W. Throckmorton elected president of constitutional convention

On February 8, 1866, the constitutional convention reconvened in Austin. Six additional delegates presented credentials to join the 63 who came to the first session on the previous day.

James Webb Throckmorton, a future governor, was chosen as president of the convention. He was one of only six delegates at the 1861 Secession Convention who had voted against secession. Upon taking the chair, Throckmorton addressed the convention:

Gentlemen of the Convention:

We have met together under peculiar circumstances. We have passed through a period in the history of our country, momentous in its character, and from which a new era will be inaugurated. As the representatives of the people of Texas, we have been intrusted, at a critical moment, with their most sacred interests. We should act with the purest patriotism, and, in my humble judgment, with a view alone to the future, uninfluenced by past predilections or opinions, and uncontaminated by passion or prejudice.

The period through which the country has passed has been one of extraordinary gloom. It has been a period which has made the stoutest hearts quail, and the purest patriots tremble. I recur to the past with no other purpose than to recall to mind our situation, and the responsibilities now devolving upon us.

Allow me to express he conviction already impressed upon my mind, that your deliberations will be harmonious, and marked with that spirit which should alone prevail where such great interests are at stake. Let us by our action strengthen the hands of the Executive of the Nation, and, by a ready and willing compliance with his suggestions, show to our national brethren that we are, in good faith, disposed to renew our allegiance the general government. Let us bury, upon the altar of our common country, all the recent past, with all its painful associations and recollections; and, upon that altar, hallowed by clustering reminiscences of three quarters of a century, renew our devotions to the Government of our Fathers—a government reared by sufferings, and consecrated by their blood, and in the glories of which we have an inheritance.

Let us kindle afresh, in our own bosoms, and in the bosoms our fellow-citizens throughout the length and breadth of our noble State, the fires of patriotism that once burned so brightly in behalf of the general government, but which have been well nigh extinguished by the blood of civil war. Let the future deliberations of the Convention show to the authorities of the government and to the American people, that, although Texas is the last of the Southern States seeking restoration, the delay was caused no fault of her people.

I thank you, gentlemen, for the honor you have conferred upon me, and am sensible of my incapacity to preside over your deliberations with the ability necessary for such an occasion. I know I shall receive, in the discharge of the duties assigned me, your cordial support. I cherish the hope that our labors will redound to the general good of our own State, and to the promotion of the great interests of the whole country. And, although it is true that sorrow and gloom have filled the whole land, and smoke of war gone up to the heavens from burning habitations and desolated districts, and every household been draped in mourning, yet I trust that our children and their children may look back to the hour of the assembling of this Convention, and bless it, as one of the happiest and most auspicious in the history of our country.

I hope that our labors will enable Texas to hold up her head once more, and take that proud position among the States of the American Union to which she is unquestionably entitled; that peace, prosperity and happiness, and a fraternal feeling, may be restored, not only to us, but throughout our common country

I thank you, gentlemen, for your kindness and attention.

The convention then proceeded to elect a secretary, sergeant-at-arms, and door-keeper before adjourning for the day.

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#OTD 1866: the post-Civil War constitutional convention of 1866 convenes

On February 7, 1866, a convention “to alter or amend the Constitution of the State” convened in Austin. The then-current Constitution of 1861 had been adopted in furtherance of the secession of Texas, so a revision was obviously in order in light of the outcome of the Civil War.

The provisional governor, Andrew J. Hamilton, had ordered an election for the purpose of electing delegates, and 63 delegates appeared and presented their credentials on the appointed day in the Hall of the House of Representatives. Former Governor James W. Henderson (pictured below) assumed the role of President, pro tem, and then the convention adjourned until the next day.

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#OTD 1869: Reconstruction Convention finally declared adjourned

On February 6, 1869, the Reconstruction Convention met, but no quorum was present. According to the convention journal:

The President of the Convention thereupon declared the Reconstruction Convention adjourned, and directed the Secretary to turn over the Constitution adopted by this Convention and all ordinances, declarations and resolutions adopted by the same, and books and records, to the Adjutant General of the Fifth Military District as fast as the same could be arranged, written out and enrolled, and that the Secretary be charged with seeing to the compliance with this order.

45 of 90 delegates signed the incomplete constitution prepared by the Reconstruction Convention, and the constitution was approved by the electorate in July 1869.

OTD 1869: 22 delegates to the Reconstruction Convention recorded their protest

February 5, 1869 was the last day a quorum assembled to meet at the Reconstruction Convention. The first business of the day was a resolution for the convention to adjourn indefinitely—it failed, 20 yeas to 40 nays.

The convention voted (again, as it had the day before, by a 38-23 margin) to adopt the declaration submitting the constitution to the people, by a vote of 42 yeas to 15 nays.

A substantial minority of the convention then recorded the following protest:

HALL OF THE CONVENTION,
Austin, February 4, 1869.

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

SIR: We, the undersigned, delegates to the Constitutional Convention of the State of Texas, do hereby express disapproval of the proposed constitution adopted by a majority of this Convention.

We object to it, because it is based upon the unwarranted assumption that the constitution of the United States, with the treaties and laws made in pursuance thereof, and the accepted constitution of the State of Texas (of 1845), have not been continuously the supreme law of the land. Believing as we do, that all pretended laws and judicial decisions made within the national limits, and not authorized by and subordinate to the government of the United States, were from the beginning and must remain null and void, and the undersigned will never compromise this principle for any supposed policy.

We do most earnestly and solemnly protest against that provision in the proposed constitution which extends the right of suffrage to all those who voluntarily became the public enemy of the United States, feeling assured that it was the aim of Congress to enable the loyal people of the State of Texas; without regard to any distinction of race or color, to reorganize and maintain a government in the place of that overthrown by the rebellion, and we cannot forbear to express the conviction that the adoption by the majority of the Convention of the provision in regard to suffrage was obtained by virtue of a premeditated and deliberate deception, and by methods of intimidation, which deserve the gravest censure. The majority of the Convention have deliberately removed from the constitution every safeguard for the protection of the loyal voter, white and black. They have stricken from that instrument the whole system of registry; they have repudiated the oath of loyalty contained in the reconstruction laws; they have spurned the test of equal, civil and political rights, and we do most solemnly call upon the registered voters of Texas to vindicate the national honor, and the cause of right and of justice, by their votes.

M.C. HAMILTON, Delegate from Bastrop.
JAMES P. BUTLER, Delegate from Walker.
H.C. HUNT, Delegate representing Comal, Blanco and Hays counties.
GEO. H. SLAUGHTER, Delegate from Smith County.
JAMES BROWN, Kaufman, Van Zandt.
ANDREW DOWNING, Of Bosque County
JAMES P. NEWCOMB, Delegate from Bexar County.
JOHN H. LIPPARD, Freestone County.
S. MULLINS, McLennan County.

I subscribe to the foregoing, because I believe that many of the members were gulled, and did not understand what they were doing, and also because there were a great many absent when the vote was taken.

N. M. BOARD, Harrison county.
JACOB KUECHLER, Delegate from Gillespie, Kendall, Llano, Mason, Kimble, San Saba, Menard.
NATHAN PATTEN, McLennan County.
J. H. WILSON, Milam County.

I sign this protest for the above reasons, and because I firmly believe that the adoption of the Constitution will be the first step towards a general disfranchisement of the colored race.

E. DEGENER, Bexar County and District.
ROBERT K. SMITH, Galveston and Harris District.

I join in the above protest, except only that part which charges deception and intimidation on the part of members.

EDMUND J. DAVIS, Delegate from Nueces, etc.
RALPH LONG, Limestone County.

I sign this protest for all of the above reasons, believing that the right, not only of loyal blacks and whites are imperiled, but that the expressed will of Congress has been ignored.

G. T. RUBY, Galveston County.
W. JOHNSON, Of Marshall.

I was under the impression that I voted for a substitute that included the future, not the past. I protest against the past.

B. F. WILLIAMS.

I join the above protest, excepting the part which charges deception and intimidation on the part of the members.

A. P. H. JORDAN.

I join in this protest so far as it has reference to the suffrage question, and disclaiming any charge of fraud on the part of the mover of the substitute.

W. FRANK CARTER, Parker County.

In the evening session, a letter from Commanding General Canby was read, informing the convention that he would provide for the printing of the Constitution—the details of which had been disputed within the convention—should the convention not otherwise provide.

Two delegates resigned before the convention adjourned for the night.