OTD 1868: Judicial selection proposal referred to committee

On June 15, 1868, the president of the constitutional convention, Edmund J, Davis, introduced a proposed declaration concerning Texas courts, including the election of judges. Under the then-current 1866 Texas constitution, Article IV provided for the election of Supreme Court justices (sec. 2), District Court judges (sec. 6), and County Court judges (sec. 16). Vacancies on the Supreme Court and in the District Courts were filled by gubernatorial appointment pending the next general election to fill the post (sec. 10).

Davis’s proposed declaration would have provided for an initial appointment of judges to be promptly followed by general referendum about whether to continue with an appointment-based system of judicial selection:

Sections to be incorporated into the Judicial Department of the Constitution.

Section –.   The Judges of the Supreme and District Courts, the Attorney-General and the District Attorneys and Sheriffs of counties, shall be appointed by the Governor of the State, by and with the advice and consent of the Senate thereof. Provided, that this manner of choosing said officers shall continue in force until the first general election held after the year 1877, at which general election the question shall be submitted to the people whether they continue in force this manner of appointing said officers.

Sec. –.   The District Court shall be held in each county of the State four times in every year, and Judicial Districts shall be laid off, having this purpose in view; and all counties which do not maintain their organization complete, or may have less than one hundred and twenty qualified jurors, shall be considered disorganized, and shall be attached, for judicial purposes, to the adjoining organized county, the county seat of which is nearest the county seat of the disorganized county.

Sec. –.   The Grand Jury system shall be hereafter dispensed with, and all prosecutions for offences on behalf of the State shall be commenced by information filed in the court having jurisdiction of the offence, by the proper law officer of the State. Such information to be founded on affidavit of some responsible person charging the offence.

On motion, the declaration was referred to the Judiciary Committee.

The proposal was not ultimately incorporated into the constitution of 1869. Instead, the convention ultimately chose to provide for a Supreme Court of 3 appointed justices serving 9-year terms (art. V, sec. II), and the appointment of District Court judges for 8-year terms (art. V, sec. VI). The current system of electing Supreme Court justices to 6-year terms was introduced in the 1876 constitution.

Convention President Edmund J. Davis

Convention President Edmund J. Davis

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.

OTD 1868: Governor Pease proposes an agenda for the constitutional convention

On June 3, 1868, the newly assembled constitutional convention received the following message and proposed agenda from Governor Elisha M. Pease:

GENTLEMEN OF THE CONVENTION:

I extend to you a cordial welcome to the Capitol, and assure you that the officers of the Provisional Government are anxious to afford you every facility for the discharge of the great duty for which you have been elected—of establishing a constitution and a civil government for Texas, loyal to the Union.

The situation of the Provisional Government has been, and must continue to be, one of extreme difficulty and embarrassment. This was foreseen by me when I accepted my present position; but I could not decline it without seeming to be unwilling to aid in giving effect to what are known as the reconstruction laws. I knew that my appointment was distasteful to a large majority of the people of Texas who had participated in the rebellion, and who had heretofore exercised the political power of the State. But the emancipation and enfranchisement of our colored population had infused a new element into the body politic, who are hereafter to exercise political rights; and I believed that this class, with the loyal whites, would, as the result has shown, constitute a majority of the voting population, and to whom, I had reason to believe, my appointment would not be unacceptable.

The powers vested in the officers of the Provisional Government are exercised in subordination to the Commander of the Fifth Military District; and without his co-operation and assistance, all their efforts to execute the laws and preserve the public peace can avail but little. I regret to say that, in some instances, this co-operation and assistance have been withheld, and the acts of the provisional officers have been misrepresented and their recommendations disregarded. A knowledge of these facts has so emboldened and encouraged those who are disposed to disregard the laws that, in many instances, sheriffs have reported to this office that they were unable to obtain the aid of citizens to make arrests, because they feared personal violence from the parties and their friends.

It is due to the present Commander of the Fifth Military District that I should say, in this connection, that he has manifested a disposition to enforce the laws, and I am hopeful of improvement in this regard under his administration.

It affords me pleasure to state that the officers who have been in command of the District of Texas have at all times cordially sustained my recommendations, and rendered every assistance in their power in the execution of the laws; but their powers have been very limited.

It is not the part of wisdom to disguise from ourselves the true situation of affairs. Crime was never as prevalent in Texas as it is at this time. Since the first of December last, authentic information has been received at this office of two hundred and six (206) homicides, committed in only sixty-seven (67) of the one hundred and twenty-seven organized counties of the State, while but a small number of the perpetrators have been arrested and punished by the process of the law. This state of things has become so alarming that the people, in several instances, have taken the law into their own hands, and have executed the murderers without a trial—a proceeding which is always dangerous and greatly to be reprobated.

Any great improvement in the prevention and punishment of crime must be the work of the people themselves. So long as they tolerate the present violence and disorder and the failure to arrest and punish disorders, affairs will continue to grow worse, and be a reproach to the State. But when they will it, the municipal officers of the State will become efficient and vigilant in the discharge of their duties, life and property and personal rights will be protected, and all our material interests will prosper. The first step toward the attainment of these desirable results is the re-establishment of civil government, and the resumption of our relations with our sister States as a member of the Union.

This can now be accomplished, if our citizens choose to comply with the conditions prescribed by the laws of the United States, under which your honorable body has been elected. Few persons supposed, when hostilities had ceased by the surrender of the Confederate armies, that three years would elapse before the rebel States would be fully restored to the Union. Yet three years have elapsed; and, from the temper manifested by the public press of the State, we are apparently no nearer the accomplishment of that object than we were in May, 1865. The great majority of the white population of our State seem to have profited very little from their past experience on this subject. They still reject with scorn the mild terms offered them by the United States. While they complain that any portion of their number should be disfranchised for participation in the rebellion, they insist that loyal citizens shall not be enfranchised, because said loyal citizens are of a different race and color, although subjected to all the burdens that are imposed upon other citizens for the support and defense of the government.

The laws referred to disfranchise only such a portion of our citizens as the government of the United States considered necessary to enable the residue to establish governments loyal to the Union and in harmony with its present policy. No one supposes that this disfranchisement will be extended any further than is necessary to accomplish that object; while provision will doubtless be made for the removal of political disabilities as rapidly as the safety of the government will permit. Many of those who now oppose the enfranchisement of the colored race would gladly accept the terms proposed by President Johnson in 1865, and the proposed amendment to the Constitution of the United States, known as the Fourteenth Article, which were so contemptuously rejected. And it is worthy of their serious consideration, whether they will not bring upon themselves what they will deem much harder terms, if by their continued opposition they shall succeed in defeating the present effort to reconstruct the State.

It is not my province to make recommendations for your action; but I trust that it will not be considered improper for me to suggest that, in the constitution you are about to form, it is expected—

That you will declare that the pretended act of secession and all laws that have been enacted in aid of the late rebellion, or repugnant to the Constitution and laws of the United States, are and were null and void from their inception; and that you will at once repeal all laws that make any discrimination against persons on account of their color, race or previous condition;

That you will provide for ascertaining and paying all debts that were owing by the State at the commencement of the rebellion, and prohibit the payment of any debts incurred in aid of the rebellion, or for the support of the rebel government, during its progress;

That you will secure equal civil and political rights to every inhabitant of the State who has not forfeited these rights by participation in the late rebellion, or by conviction for crime;

That you will temporarily disfranchise a number of those who participated in the rebellion, sufficient to place the political power of the State in the hands of those who are loyal to the United States Government;

That you will make a liberal provision, by taxation upon property, for the immediate establishment of Free Public Schools for the education of every child in the State;

That you will secure to every citizen of the State, who has not heretofore received it, a reasonable amount of land out of the public domain for a homestead;

That you will adopt efficient measures to encourage immigrations to our State from foreign countries, and to give aid and encouragement to such works of internal improvement as the necessities of our people require.

All these measures are called for by the public sentiment of our loyal citizens, and are necessary, I think, to secure the future happiness and prosperity of all.

The division of Texas into two or more States is a question that has recently excited much discussion, and will doubtless be brought before your honorable body. I do not think that the public interests would be advanced by the adoption of such a measure at the present time. Our population does not probably exceed eight hundred thousand; and to subject them to the expenses of two or three

State governments, in their present impoverished condition, would not only be a very great burden, but would greatly diminish their ability to support a proper system of public education, and to give aid and encouragement to the measures that are needed to develop the wealth and resources of the State. If this measure is insisted on, it must inevitably delay our return to the Union; for the acts of Congress, under which the effort to reconstruct Texas is now being made, provide for the establishment of only one State within our territory. Should such a division hereafter be desired by our people, it can be more readily inaugurated and carried out after we shall have been restored to the Union, than it can be while we are without a representative in Congress.

There is another measure to which I would respectfully invite your attention; and that is, the propriety of authorizing a negotiation to be opened with the United States Government for a sale of all that portion of our territory lying west of a line drawn from the mouth of the Pecos river to the northwest corner of Hardeman county. This would include no part of the State that has been laid off into counties, except El Paso and Presidio counties, which are so far separated from the other parts of the State by a large uninhabited tract, that they cannot be properly accommodated with courts without making them a separate judicial district, at an expense greatly disproportioned to the revenue derived from taxation on the whole of the territory proposed to be sold. It is believed that the inhabitants of those counties will be favorable to the measure. This territory adjoins the territories set apart by the United States for the Indians, and would be useful to them in carrying out their Indian policy. It would be far more valuable to them than it can ever be to this State; and they will doubtless pay us a price for it far greater than we can realize from it in any other way. If we retain it, we shall probably fritter it away as we have the rest of our public domain, without securing any substantial benefit from it; while, with the money we may obtain from such a disposition of it, we shall at once be in possession of a fund that will enable us to do something effective for education, internal improvement and immigration, without subjecting ourselves to onerous taxation. Such a sale will still leave us sufficient territory to form three large States, whenever our citizens shall desire a division of it.

The officers of the government at this place are prepared to furnish your honorable body with such reports as will give you full and accurate information in regard to the state of the treasury at the commencement of the rebellion, during its progress, and at the present time; the condition of the School fund and the University fund, and what amount of each was diverted to the support of the rebellion; the sales of Land Scrip that were made during the rebellion, and all other information to be found in the public records that may be useful to you in the discharge of your duties.

The amount of money in the State treasury on the thirty-first of May, 1868, applicable to the ordinary expenditures of the government, is two hundred and three thousand, seventy-nine dollars and sixty-nine cents ($203,079 69); of which two hundred and two thousand, eight hundred and eighty-four dollars and thirty-five cents ($202,884 35) are in United States currency, and one hundred and ninety-five dollars and thirty-four cents ($195 34) are in specie. This is exclusive of the amount standing to the credit of the School, University and other trust funds. It is believed that this money, with that which will be received from time to time under the present tax laws, will be sufficient to meet all the expenditures of the government, and pay the expenses of your honorable body, unless they should be greater than is anticipated, without the necessity of imposing an additional tax upon our citizens, as contemplated by the supplementary reconstruction law of the twenty-third of March, 1867. The Convention of 1866 was composed of the same number of members as the present, and continued in session fifty-five days; and the entire expenses of that body were sixty-nine thousand nine hundred and thirty-three dollars and fifty-nine cents ($69,933 59). And it is estimated that ninety thousand dollars ($90,000) will be sufficient to cover your expenditures. And I would respectfully suggest that the Convention at once pass an ordinance, as contemplated by the said act of Congress of the twenty-third of March, 1867,

prescribing the fees, salaries and compensation to be paid to all delegates, and other officers and agents that may be necessary to enable you to complete your labors, and appropriating the sum of one hundress thousand dollars ($100,000), or so much thereof as may be necessary, to pay the same; and that you also pass a resolution requesting the Commanding General of the Fifth Military District to approve your action in the premises. This course, I learn, on consultation with the Treasurer and Acting Comptroller, is desired by them for protection, and will be recommended to said commander by myself and the officer in command of the District of Texas.

We have reason to congratulate ourselves on prosperous seasons, and the prospect of abundant crops. The freed people are doing well, far better than their most ardent friends anticipated under all the circumstances by which they have been surrounded. The prejudice against them is gradually giving way to a better feeling. Many of those who prophesied ruin to the country from their emancipation are now compelled to admit that there is still some hope for the future; and when they shall have been secured in the enjoyment of the same civil and political rights as the white race, and the question finally set at rest, it will become a matter of surprise to many that they ever opposed the measure, in a country where the institutions are professedly based upon the principle that governments derive their just powers from the consent of the governed.

I trust, gentlemen, that a spirit of harmony will mark all your actions, and that you will be governed by a sincere desire to establish such a form of government as shall secure equal and exact justice to all. And I invoke upon your deliberations the blessings of that Almighty Power that has so often and so signally interposed in our behalf as a community in the hour of need.

Very respectfully,
Your obedient servant,
E.M. PEASE,
Governor of Texas.

Governor Elisha M. Pease

Governor Elisha M. Pease

#OTD 1868 Texas Constitutional Convention convenes in Austin

On June 1, 1868, a constitutional convention convened in Austin. 78 of the 90 convention delegates answered the first day’s roll call. In an early indication of the political dynamics that would be at play between multiple factions of the dominant Republican party, General (and future Texas Governor) Edmund Jackson Davis was elected president of the convention over Texas Supreme Court Justice Colbert Caldwell. As president of the convention, General Davis supported expanded rights for blacks, as well as the “ab initio” theory that all post-secession laws enacted in Texas were null and void. These would prove to be major issues in the deliberations of the convention, whose incomplete work ultimately became the basis of the 1869 Texas constitution.

General Edmund J. Davis

General Edmund J. Davis