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

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s