1. The Inauguration of Provisional Government.
On June 17, 1865, soon after it became known that armed resistance had ceased in the Trans-Mississippi Department and that troops had been despatched to occupy Galveston, President Johnson, in pursuance of the policy already adopted in other Southern States, appointed A. J. Hamilton provisional governor of Texas. Hamilton was a native of Alabama who had come to Texas in 1847 and had become prominent in politics before the war. He had been Attorney-General of the State and in 1858 had been elected to Congress. Along with Houston and others he had vigorously opposed secession and refused adhesion to the Confederacy, but had remained in Texas until 1862, when, threatened with military arrest, he escaped into Mexico and thence to New Orleans. Here he entered the Federal army as a brigadier-general of volunteers, and in 1863, when the Brownsville-Red River expedition into Texas was projected, he was given a commission as military Governor of the State by President Lincoln. He was, therefore, regarded by President Johnson as logically the man for Provisional Governor after the surrender of the Confederate authorities. Hamilton was a man of energy and ability, of sturdy honesty, aggressive and uncompromising, and though prone, when excited, to violence and harshness of speech, restrained and governed in action by an unfailing generosity and abundant common sense. He was an orator of extraordinary power and had enjoyed the reputation of being one of the ablest lawyers in the South. The news of his appointment was received with general satisfaction by the Unionists and with some misgivings on the part of those who feared he was returning for purposes of vengeance.
The proclamation which contained his appointment declared it to be the duty of the United States to guarantee to each State a republican form of government, and that, in-as-much as the rebellion had deprived the people if Texas of all civil government, it was now the solemn duty of the President, imposed by the constitution, to enable the loyal people there to organize a State government. The Provisional Governor was directed to prescribe at the earliest practicable period such rules and regulations as might be necessary and proper for holding a convention composed of delegates to be chosen by that portion of the people of the State who were loyal to the United States, and no others, for the purpose of altering or amending the constitution of the State; and he was given authority to exercise all necessary and proper powers to restore the State to its constitutional relations to the United States; provided that in the election for delegates to the convention no person should be eligible either as an elector or as a member of the convention unless he had previously taken the oath of amnesty, as prescribed in the President's proclamation of May 29, 1865, and was a voter as prescribed by the constitution and laws of the State in force immediately before secession. The military commander of the department and all other military officers in the service of the United States were directed to aid and assist the provisional governor in carrying the proclamation into effect, and were enjoined to abstain from hindering or discouraging in any way the loyal people from organizing a State government. The Secretary of State was directed to put in force all the laws of the United States, the administration of which belonged to his department and which were applicable to the State of Texas; the Sectary of the Treasury was to proceed to nominate the officers necessary to put into operation the revenue laws, giving preference in each case to loyal persons residing within the district; the Postmaster-General was directed to re-establish the postal service; the United States District Judge for the district of Texas was authorized to hold courts according to the acts of Congress; the Attorney-General was directed to instruct the proper officers to libel, bring to judgment, confiscation, and sale such property as had become subject to confiscation; and the Secretaries of the Navy and the Interior were directed to put in force such laws as related to their respective departments. 78
Governor Hamilton arrived in Galveston on July 21, where he was welcomed by a delegation of Unionists. From here he sent a cheerful letter to the President, expressing the conviction that all classes, except certain of the ex-slaveholders, were friends of the Government and were rapidly availing themselves of the President's amnesty proclamation. He deprecated a tendency on the part of the planters to keep the negro in some sort of bondage and to talk of “gradual emancipation” even after having subscribed to emancipation in their oath of amnesty. 79 On the 25th he issued from Galveston a proclamation “to the people of the State of Texas,” reciting the manner and purpose of his appointment and indicating in a general way the course he expected to take with respect to the election of a convention and the appointment of civil officers. Suitable persons were to be appointed in each county to administer the oath of amnesty 80 and register the loyal voters. Civil officers for the State, districts, and counties were to be appointed provisionally. The general laws and statutes in force in the State immediately prior to the ordinance of secession, except in so far as they had been modified by the emancipation of the slaves and by acts of Congress for the suppression of the rebellion, were declared in force for the direction of courts and civil officers; all pretended State laws passed since secession were inoperative, null, and void. There was to be “amnesty for the past, security for the future,” but the people must accept the fact that slavery was wholly dead and that the negroes would be protected in their freedom by the United States. Finally, loyal men from every part were invited to visit the capital and confer with the Governor upon the conditions of the State.
When the Provisional Governor arrived in Austin a few days later, he was received with enthusiastic ceremony by the Unionists, of whom there were a large number in the city. He found all affairs of state in confusion. There were no officials of a civil character, the treasury had been looted, the various departments were untenanted, the records were precariously exposed, there was even no roof on the capitol building. Immediately a commission was appointed to look into the condition of the treasury and the Comptroller's department and to audit their accounts; State agents were appointed to look after and take charge of State property of whatever description in the various districts; and other agents were empowered to locate and recover if possible bonds alleged to have been illegally disposed of during the war. Judge James H. Bell, formerly Associate Justice of the Supreme Court of the State, and prominent as a Union man, was appointed Secretary of State; Wm. Alexander, another Union man, who, it appears, had secretly opposed Hamilton's appointment, was made Attorney-General. Taxes were assessed by proclamation and ordered collected. In response to the invitation above mentioned, within a short time deputations of loyalists from over eighty counties made their way to Austin to aid in reorganizing the government. These men furnished the Governor names of loyal citizens from their counties for appointments to office, and were generally relied upon by him for information concerning conditions in the various parts of the State.
As rapidly as possible, officers of district, county, and justice courts, sheriffs, tax assessors and collectors, and county commissioners were appointed, and the machinery of the law set in motion. The courts were directed to proceed with the trial of all civil and criminal cases in conformity with existing laws of the State, that is, laws passed prior to 1861, and of the United States. 81 The time of holding district courts and the form of the districts were to conform to acts passed since secession “out of considerations of public policy and convenience.” Negroes were to be tried and punished in the same manner as whites, but the Governor left the question of their admission as witnesses to be determined by the courts themselves on the ground that it was a judicial and not a political question, and that an executive decision might be overruled by some subsequent Supreme Court, or that the principle might fail to be embodied in the Constitution by the future convention. 82 Attorneys-at-law not in the classes excepted from the general amnesty were, upon taking the amnesty oath in open court, to be allowed to practice. 83 In all appointments, subscription to the amnesty oath was required, but preference was given to men of undoubted loyalty in so far as such matters could be determined. In many counties fit “union” applicants were so scarce that it was necessary to appoint secessionists. A notable case of this sort was the selection of Richard Coke, later Governor and United States Senator, as judge of the Nineteenth Judicial District. Though there were frequent complaints from disgruntled “loyalist” office-seekers, the appointments seem to have given general satisfaction.
The chief duty of the Provisional Governor, as set forth in the proclamation containing his appointment, was to provide for the assembling of a constitutional convention elected by the loyal people of the State. The test of loyalty was simply the taking of the oath of amnesty, a policy sufficiently generous, and based, no doubt, upon the idea that the majority of the people had entered the war reluctantly and were at heart well-disposed toward the Federal government. In accordance with instructions, Governor Hamilton, on August 19, issued a proclamation providing for the registration of voters. In each county the chief justice, the district clerk, and the county clerk were to act as a board of registration and sit at least one day in each week at the county seat. The oath of amnesty was to be administered to all who applied. both to those who sought registration as voters, and to those who, being within the exceptions to the general amnesty, took it as a preliminary step toward special pardon. Separate rolls were to be kept of these two classes. Meanwhile, the order for an election of delegates was withheld until the results of the registration should become known. This work, however, proceeded very slowly. Since there were no mails, it was many weeks before the proclamation reached some of the counties, and for those who lived far from the county seat where the board held its meetings, registration was usually a process involving considerable inconvenience. But even when this was not the case the people responded to the invitation without enthusiasm. The newspapers throughout the State united in urging them to register in order to hurry along the restoration to normal conditions. At the same time they urged the Governor to order an election and to assemble the convention as early as possible, for in all the other Southern States the conventions had completed their labors by the end of October.
2. General Conditions of Loyalty and Disloyalty in the State.
But the Governor and his friends were of the opinion that Texas was not yet in the proper condition for the calling of the convention. It seemed to them that the people were not yet free from their ante-bellum delusions and had not yet clearly understood the problems they faced and the proper way in which to solve them. They discovered, for instance, a lingering belief that compensation might yet be secured for the loss of slaves, and hence a reluctance to take the amnesty oath lest they in some way estop themselves from claiming the compensation. There was still talk, here and there, of gradual emancipation; there was a disposition in some of the remote districts to keep the negroes in bondage and to treat with cruelty those who endeavored to exercise their freedom. A large part of the press and most of the secessionist politicians were prejudiced against the Governor and secretly or openly hostile to the plans of the government. Therefore, it seemed to them necessary, first, to establish order and civil authority through the power of the provisional government and to enable the United States courts to repress treasonable action, and then allow time for the public mind to become tranquillized and to be directed fairly toward the changes that would be necessary in the Constitution. Because of the vast extent of the State and the impracticability of distributing sufficient troops everywhere to secure a speedy restoration of order, and owing to the utter absence of mail facilities for informing the people of the intentions of the government, it seemed best to make haste slowly. 84 Accordingly, with the view of making clear the work that must be done in the convention, if the State was to enjoy a speedy restoration to its normal place in the Union, the Governor issued on September 11, a lengthy address to the people of the State. After reviewing historically the whole question of slavery and secession, which he regarded as a long-continued and elaborate conspiracy against the Union, originally aiming at secession and an aristocratic government in the South, and warning them against the press and the politicians “who were still trying to mislead them by the same deadly doctrines,” he explained the necessity for his actions as Governor, and then proceeded to state his views on that problem which he thought the people were least ready to solve in a manner satisfactory to the Federal government. Slavery, he again assured them, was already wholly dead and could not be revived in any form. Compulsory labor laws would be regarded by the people of the North as a mere subterfuge and would not be tolerated, for the people of that section were united upon this one thing as they had never before been untied upon anything—“that slavery must cease forever.” Now that the negro was to remain free, he must be given equal civil rights with the white man, and should have his testimony admitted in the courts in all cases, subject only to the rules which applied to the testimony of whites. He warned them that unless some such action was taken, it would be useless to expect that senators and representatives from Texas would be allowed to take their seats in Congress. 85 In conclusion, he promised that the convention would be called as soon as the people had qualified by taking the oath of amnesty and had an opportunity to discuss and consider well the momentous questions upon which their delegates would be required to take action, for it was essential to the speedy restoration of the State that no mistake be made.
But whatever of wartime prejudice they may have harbored against the Provisional Governor and whatever they may have thought of his attitude upon the negro question, the people gave abundant evidence of good will toward the provisional government itself. So weary had they become of disorder and lawlessness and so fearful of a purely military government, that any civil authority, even though one not of their own choosing, was welcome. As soon as the new State government had been set up, public meetings, usually without regard to political affiliation, were called in many counties, and resolutions were passed tendering the Provisional Governor the support of the citizens in the maintenance of law and order and in the restoration of the civil government on the basis of the President's policy. In addition, just and liberal treatment of the freedmen was usually advocated, sometimes the people were urged to qualify as voters, and it was recommended that similar meetings be held in other counties. In some instances where the secession element was preponderant, the resolutions simply “accepted the situation” and pledged support to the authorities. 86
Party lines had by no means vanished though at times ignored. The secessionist leaders were, of course, generally quiet, but the approach of Federal troops and the return of numbers of refugees had emboldened the Unionists in many localities to form Union associations that did not hesitate to take up a partisan attitude. “The Loyal Union Association” of Galveston, for example, organized the same day that Hamilton arrived from New Orleans, pledged itself “to vote for no man for office who had ever by free acts of his own tried to overthrow the government, but to support Union men always.” 87 The “Union Association of Bexar County” in November declared that it was necessary for Union men to be on their guard lest the element which had endeavored to destroy the Union get into power again, for the struggle, “not of arms but of principles,” was to be fought over again. 88
A cardinal doctrine of these Union associations was that a large portion of the people of the State did not deserve to be re-invested with political power because of continued disloyalty to the Federal government. Assertions to this effect were constantly reiterated and found prominent place in Northern journals almost to the exclusion of reports of any other kind from Texas. As to the real strength of the loyal or disloyal sentiment in Texas at that time no accurate statement is possible. Beyond doubt, most people were not enthusiastic in their loyalty, and it was but natural that after four years of war such should have been the case. On the other hand, there was less bitterness than was manifested under the harsh congressional policy a few years later. Few had enjoyed the arbitrary regulations and exactions which the Confederacy had been obliged to impose, and they had few regrets for the passing of that government. Perhaps the chief resentment against the conqueror grew out of the loss of their property in slaves; and it seems certain that their tardiness in taking the oath of amnesty, set down by some as a proof of disloyalty, was largely due to a fear that such action might debar them from any future compensation. The charge that they and their late leaders hoped to get control of the State government again was beyond question true, but as they had not been disfranchised, there was no sensible reason why they should not have expected that. That they would have used the power thus recovered “to renew the rebellion” is in every way inconceivable, but that they would have turned it against the northern radicals is certain, and to condemn that as treason seems a curious perversion of the term.
Most of the charges of disloyalty in Texas were based upon alleged persecution and maltreatment of Union men and freedmen. It must be admitted that violence of this sort constantly occurred, but it appears to have been due far less to actual hostility to the Federal government than to the wide-spread disorder and lawlessness attending the break-up and the interregnum following it. The absence during that time of the ordinary peace officers had given free sway to turbulent characters of all sorts, encouraged pillage and robbery, permitted neighborhood feuds, jayhawking and guerilla marauding; and it is notable that violence was not directed against Unionists and freedmen alone. The fact that Union men had not always fully recovered their popularity was not evidence in itself of actual disloyalty, and that advantage was taken of such unpopularity by the rowdies who bullied, threatened, and sometimes robbed or murdered them, is proof of the weakness of the arm of the law rather than of anything else. The violence toward freedmen was due partly to that tendency of rowdyism to attack the weak and unprotected, and partly to resentment at the new insolence and the irrepressible bumptiousness of the freedman himself.
In many counties the outlaws were so numerous and so well organized that they could defy arrest, and in others so few of the citizens had taken the amnesty oath that the courts were hampered and delayed by the difficulty of procuring jurors. 89 The number and character of the general petitions to the Governor from variout parts of the State asking for troops or the organization of county police is sufficient proof of the nature of the disorders. For example, one from Bell County, October 9, recites that “the civil authorities are helpless because the county is full of ruffians and lawless men,” and demands troops. Another from Grayson County, November 10, declares that “laws can not be enforced without the aid of the military.” 90 In a letter to General Wright, September 27, the Givernor said that crime was everywhere rampant, that the civil authorities alone could not be depended upon for some time, and that in many counties the civil process could not be executed. He requested that military forces pass through the counties where none were stationed. 91 But there were large districts comprising several counties that contained not a single soldier, and the troops were not sufficient to police thoroughly the vast territory over which they exercised authority. Therefore, in response to petitions 92 from various quarters where outrages were occurring, and from others where fears of a negro uprising were felt, the Governor issued a proclamation, November 18, authorizing the organization of a police force in each county to be subject to the civil authorities and to act with the military. This police force was actually organized in several counties and seems to have been very effective in checking the disorders.
Under conditions of such universal violence and confusion, it would have been strange indeed if Union men had not been subject to insult and outrage. Undoubtedly there were cases of unprovoked violence against them, there were cases in which mobs were guilty of intensely disloyal conduct, as when a crowd tore to pieces a United States flag on the court house at Weatherford, 93 or when another mob at Bonham beat and shot at a number of negroes and destroyed a flag. 94 But such occurrences were few and the preponderance of evidence goes to show that most of these outrages were committed in the northern part of the State and were the work of outlaws who had their headquarters in the Indian Territory and plundered and murdered without distinction of party. 95
Whether intended for that purpose or not, the reports that went from Texas of the mistreatment of Unionists made excellent political capital for the radical extremists in Congress who had already begun their attack on the President's policy of restoration. Many of these stories were of the most extraordinary sort,—such, for example, as those in the anonymous letters which Mr. Summer was so fond of reading in the Senate, 96—and are unworthy of serious attention. Perhaps the statements that gained most credence at the North were those of Federal officers who had been stationed in Texas. One of these, General Wm. E. Strong, Inspector General on the staff of General O. O. Howard, is quoted in the New York Herald, in January, 1866, as saying that Texas was in the worst condition of any State that he had visited, that almost the whole population was hostile in feeling and action to the United States; that there was a mere semblance of government, and that the whites and negroes were everywhere ignorant, lawless, and starving. 97 When before the Reconstruction Committee in March he reiterated the statements, adding that “one campaign of the United States army through eastern Texas, such as Sherman's through South Carolina, would greatly improve the temper and generosity of the people.” General David S. Stanley, who had been stationed at San Antonio after the “break-up,” stated before the same committee that “Texas was worse than any other State because she had never been whipped,” that the women were universally rebels, and that in case of a foreign war almost the entire population, with the exception of the Germans, who were very loyal, would go over to the enemy. 98 It was also commonly asserted that many rebels who had been quiet and submissive at the close of the war, were now, at the prospect of recovering control of the State, growing insolent and defiant.
3. The Freedmen and the Freedmen's Bureau.
There was no subject connected with the restoration of the State government to the control of its people that the general public in the North watched with greater solicitude than the adjustment of the new relations with the freedmen. It had been announced that the treatment accorded these wards of the nation could be taken as a sure index of the loyalty of the Southern people. It was unfortunate that this mistaken idea should have been so generally accepted, and unfortunate, again, that the people of the South could not at once appreciate its power and the necessity of conciliating it. To the Northern mind, as the rebellion had been in behalf of slavery, the complete destruction of that institution was the surest guarantee of the preservation of the Union, and any attempt to evade it was regarded as an expression of rebellious sentiments. To the Southerner, emancipation had presented itself chiefly as a confiscation of his property, as an unwise and arbitrary upsetting of the industrial system to which the negro belonged, and as an injustice to the negro himself. The most immediate and pressing problem, as it seemed to him, was to preserve the normal balance of society, and to provide for the freedman an industrial position in that society such that agricultural interests would suffer the least possible additional shock, for it was generally believed that free negro labor would be a failure and that a labor famine was imminent. 99
In fact, the experiences of the summer of 1865 had been such as to warrant no other opinion. In the south central and southeastern counties in particular, where the actual presence of the military made it difficult for the whites to apply coercion, the blacks had, with some exceptions, either preferred not to enter into contracts to labor or had not kept them when made. How could they be free, they reasoned, so long as they still had to work in the fields? Throughout the summer months they had slipped away from the plantations as opportunity offered or whim suggested, and despite the military regulations to the contrary, large numbers collected around the towns where, luxuriating in idleness and heedless of the next winter, they eked out a meagre subsistence by petty thieving, begging, or doing occasional odd jobs. Crowded together indiscriminately in small huts they rapidly fell victims to disease and vices of all sorts. 100
Meanwhile the harvest time approached and despite the fact that the acreage was not large, there were not enough laborers to gather the crops. The freedmen had become possessed of the singular delusion that on the following Christmas the government would divide among them the lands of their former masters. The government had given them their freedom without their asking for it, they had heard rumors from various quarters that they would be given property,—why should it not be true? There was no use in working if they were to be made rich in a little while, so they met all propositions to work with the response, “We'll wait 'til Christmas.” 101 It is small wonder that the planter who saw his old field hands idling their time away in town, improvident as children, making no preparations for the rigors of winter, sinking into demoralization and crime, while his crop went to waste for the lack of their labor, should have looked forward to some remedy, some law that would bring back these victims of a mistaken philanthropy to the work which their own welfare as well as that of the general public seemed to demand. None but a system of coercion, he thought, offered any promise of the necessary relief.
The Freedmen's Bureau, created by Act of Congress, March 3, 1865, to take control of all subjects relating to freedmen, refugees, and abandoned lands in the conquered States, like other forms of Federal authority, had not been extended to Texas until much later than elsewhere. The Assistant Commissioner appointed for Texas, General E. M. Gregory, arrived at Galveston late in September, and, although he seems to have been actively at work, it was not until December that he so far perfected an organization as to appoint a dozen local agents, of whom five were civilians, at the most important points in the interior. 102 In the meantime, the local work had been carried on by the various post commanders. From the beginning General Gregory addressed himself assiduously to ameliorating the condition of the labor situation. In his first circular order, October 12, after emphasizing their freedom and making clear that it was the office of the Bureau not only to act for them and to adjudicate all cases in which they were concerned if the civil courts failed them, but also to give them substantial protection, he urged upon the freedmen the necessity for their going to work under contracts carefully drawn up and approved and registered by the Bureau. All officers and good citizens were enjoined to disabuse the minds of the freedmen of any idea of a Christmas division of property. In November, General Gregory, in company with Inspector-General Strong, made a tour through the eastern counties for the purpose of acquainting himself with conditions there. During the trip he endeavored to give the blacks a knowledge of their true condition, especially with reference to the necessity for and the manner of making contracts for the next year. He returned exceedingly optimistic with regard to the character and promise of the sable populace. 103
In the meantime, so many petitions had poured in upon the Governor to forestall a threatened uprising of the blacks at Christmas that he authorized the organization of county police. 104 Furthermore, on November 17, he issued an address to the negroes which he caused the chief justice of each county to read to them. He told them in the plainest terms that they must go to work, that they could not remain idle without becoming criminal, that they would get nothing more from the government either at Christmas or at any other time, and that if they disturbed the property of others they would be severely punished. Reinforced by the efforts of General Gregory and the army officials the address seems to have had a very good effect, but many of the negroes still cherished a lingering hope until it was dispelled at Christmas.
General Gregory exerted himself during December and January to put labor upon a firm basis for the next year; and, though his lack of intimate understanding of the negro character and his failure to appreciate and to take into account the common notions of social precedence often gave offense to the whites and retarded somewhat the success of his plans, his energy and perseverance did much to bring about a more hopeful situation. Planters were urged to settle with the laborers for the past season and to make contracts with them at once for the ensuing year on fair and liberal terms. 105 In order to promote the contract system he made a trip through the lower river-bottom counties where the black population was densest. General conditions came to his aid. Cotton planting was immensely profitable because of the high prices then being paid for the staple and planters who were sceptical of free negro labor grew willing to give it a trial. With the calling of the constitutional convention, political affairs began to assume a more stable aspect, so that people were no longer apprehensive of confiscation. Many of the blacks who had been brought into Texas during the war were now making their way back into the other States. 106 The demand for labor grew keener. On the other hand, the negroes, having been disappointed in their Christmas expectations, were more ready to work. In many instances, too, where they were out of reach of the Bureau's commissary stores, their previous improvidence now forced them to work to secure food. A report from Washington County in the black belt, January 24, stated that in that county two-thirds of the freed population were then at work at good wages, that seven thousand contracts had been filed already, and that unemployed freedmen were becoming scarce. 107 Similar reports came from other communities and the situation gradually grew more promising throughout the State.
It may not be inappropriate at this point to indicate briefly the general character of the work the Bureau had to do in Texas. There were no abandoned lands in the State and the Union refugees usually depended upon the military for such protection as they needed; consequently the activities of the Bureau were confined to looking after the interests of the negro. These activities may be classified roughly as relief work, educational work, labor supervision, and judicial protection. Its supervision of labor interests, that is, oversight of contracts and wages, has already been considered, and for the others brief statements will suffice. The actual relief work done was comparatively slight. Rations had been issued somewhat extensively by the military authorities in the early summer, but since there was plenty of food to be had for work, this practice was gradually checked. During the winter the number fed had increased, but by the end of January only sixty-seven were receiving government support. 108 One hospital had been established, but ceased to be used after the close of winter. 109 The educational work was under the charge of Lieutenant E. M. Wheelock, who, by the end of January had in operation twenty-six day and night schools with an enrollment of about sixteen hundred pupils. 110 These schools were supported partly by voluntary contributions, partly by a small tuition fee. But that function of the Bureau which, from the manner in which it was exercised, caused more irritation to the whites than any other, was the extension of protection over the negro in the State courts. In localities where such courts, by reason of the old code, refused to allow the negro to give testimony or otherwise denied him justice, it was made the duty of all Bureau officials to withdraw from the courts and themselves adjudicate cases in which a freedman was concerned. 111 Unfortunately, the wide powers here implied were not always used with honesty or discretion; and too often, by arbitrary or needless interference with the regular courts, the Bureau forfeited public confidence and weakened its efforts along other lines. However, the worst abuses developed only after the suffrage had given political power into the hands of the negro and had made it profitable for the ambitious Bureau agent to court his favor. For the time the zealous activity of the Assistant Commissioner in clearing the towns of idle negroes won the good will of the press and the public. 112
4. Relations of the Civil and Military Authorities.
The proclamation appointing Governor Hamilton had neither clearly defined the powers of the Provisional Governor nor explained his proper relations with the military authorities further than to order that they should aid him in the performance of his duties and not interfere with him. It was evident, however, that while each within a certain sphere enjoyed exclusive authority, there was a region over which they exercised concurrent or rival jurisdiction; and it early became clear that conflicts were likely to arise in matters pertaining to the maintenance of public order, especially in criminal cases. Prior to the establishment of the provisional civil courts, all criminal cases had been disposed of through military courts; and, while it was generally expected that the latter would now abandon a large class of cases to the civil authorities, their own jurisdiction over such matters had not been expressly abrogated or curtailed. The establishment of the Freedmen's Bureau courts increased the opportunities for conflicts. There were, therefore, three classes of courts in the State, all claiming criminal jurisdiction. The military claimed control of all matters in which soldiers or employes of the government were involved, and were responsible for the maintenance of order where the civil courts were not organized; the Freedmen's Bureau exercised jurisdiction over matters relating to freedmen, especially where it was believed that the civil authorities would not do them justice; the civil courts claimed jurisdiction in all criminal cases, though in the face of the military power, these claims were not always strenuously asserted.
Governor Hamilton and General Wright, the department commander, 113 preserved amicable relations throughout, and endeavored in every way to prevent a conflict. On August 17 the former wrote to General C. C. Andrews, one of the district commanders, requesting that a white man, whom the military had arrested for the murder of a freedman, be turned over to the civil court for trial. 114 The Governor was evidently not sure of his ground, for he asked what course the military authorities proposed to take in criminal cases. He expressed the opinion that it would be entirely safe to remit all offenders to the civil courts for trial and that it would be good policy to do so, since the people felt much anxiety in the matter. Soon afterwards he changed his mind. On September 27 he wrote to General Wright, asking that the military branch of the government execute vigorous punishment upon criminals, and confessing that the civil authorities could not be depended upon for some time. With respect to the relations between the two, he did not regard the provisional government of the State as having superseded the military authority. His view of the political condition of Texas was this: “There is no constitutional State government. The provisional government of Texas is created by and exists at the will of the President. My authority as Provisional Governor is limited to such measures as may be necessary to prepare the people of the State and provide means for a convention to organize a new constitutional State government, which, when adopted and recognized by the general government, will supersede, within the limits of its jurisdiction, the military power in all things not properly pertaining to the military authority of the United States in time of peace. For the Present, the action of the civil authorities created by me is allowed only as a means,—to the extent that they can be made available,—of aiding the authorities of the general government in preserving public peace and order, and in protecting individual rights and property. I have felt sure the general government would not object to such quasi-civil government as I have temporarily effected, but it would be in conflict with the views of the government to claim for the provisional government any power except such as emanates directly from the President. In this view I not only see no objection to the trial of offenders before military tribunals, but believe it a necessity unavoidable without great detriment to the highest interests of the people.” 115
In reply to this, General Wright disclaimed any wish to interfere with civil processes when it could be avoided. He said: “It was understood when I assumed command that, 1st, all matters between white citizens of the State were to be acted on by the civil authorities constituted by you, as far as practicable. 2nd. That matters in which freedmen were concerned were to be left to the action of the Freedmen's Bureau, which was to act through specially appointed agents, of which your officers might form a part. 3rd. That the military authority should confine itself to matters pertaining to the military, and should give necessary aid either to the civil authority or to the Freedmen's Bureau.” Since it seemed that this program, though highly desirable, could not be carried out, he agreed “to issue an order directing military commanders to turn over to civil tribunals all criminal cases, wherein soldiers are not concerned, where the civil authority is in condition to act, and where justice to all concerned can be looked for,—the colored man being put upon perfect equality with the white before the courts,—and where such justice can not be expected, to bring the cases for trial before a military commission or a Freedman's Bureau court.” 116
An understanding was thus effected defining more clearly the limitations within which each class of officials was to exercise jurisdiction; but it necessarily left unsettled the question as to when the civil authority was strong enough to deal with public disorders without the interference of the military, and whether the civil court was granting the freedman the privileges to which he was entitled. The effectiveness of such an agreement would depend chiefly upon the mutual forbearance of those entrusted with carrying it out in detail, and it was too much to expect a great measure of that quality from the average post commander, ignorant of the civil law and impatient of a less direct method than that to which the camp had accustomed him, or from the judge who sought to uphold the dignity of the civil authority and felt constrained to base his acts upon what remained of the old code.
The first serious trouble was at Victoria, where Colonel I. T. Rose, of the 77th Pennsylvania, was stationed. Eight distinct charges of outrageous conduct on the part of Rose were laid before the Governor. 117 Finally, a white man, M. M. Gwinn, who had killed a negro and had been acquitted in a preliminary trial in open court, in which the testimony of negroes was freely admitted, was, after being released, rearrested by Rose and confined in jail. A certified copy of the proceedings of the court was put in the hands of the Governor, who sent a peppery letter to the Colonel, demanded the release of Gwinn, and laid the matter before General Wright. Wright ordered the release of Gwinn and soon afterwards Rose was transferred to duty elsewhere.
A more serious affair occurred at Jefferson. R. L. Robertson, acting as Treasury agent, was indicted on three distinct charges, two of swindling and one of theft, by a grand jury. He was released by the interference of Captain Jones, the post commander. He was again arrested and his release was ordered of District Judge Gray by Major Clingman, at Marshall. After the judge had twice refused, Captain Jones with a body of soldiers forcibly took Robertson from jail. The civil authorities appealed to the Governor; the military appealed to their superiors. General Canby issued the following: “State courts have no jurisdiction over their (Treasury agents) official conduct, nor can they, without usurpation, investigate the title of property held by the United States as captured and abandoned.” Concerning this Judge Gray wrote to Hamilton: “The District Court of Marion County has never claimed jurisdiction over the official acts of agents of the government, but when an agent violates the Penal Code, the District Court has claimed and exercised judisdiction over him. As well had the agent claimed freedom from arrest for murder as for any other crime.” The judge then said that if he could not punish cotton thieves he would not punish any, and declined to hold other courts. In the meantime, his arrest was threatened if the indictments were not withdrawn. The matter dragged along in this fashion until all attempts to bring Robertson to justice had to be abandoned. 118
Aside from the disputes over the respective jurisdictions of the civil and military, in some localities the conduct of the troops was a source of irritation and complaint. In the summer of 1865 Flake's Bulletin, of Galveston, is full of references to outrages perpetrated by the Federal soldiers stationed in that city. Open robbery, insults to women, and disorderly conduct are matters of daily comment. The troubles at Victoria have already been indicated. These were white troops. By far the greatest complaint was against the colored troops that were brought into the State in the late summer and fall to replace the volunteer regiments that were being discharged. In November a petition was sent Governor Hamilton from Jackson County for relief from a body of three hundred negro troops that had been detailed there to cut ties for the Lavaca and San Antonio Railroad. These negroes were heavily armed and parties of them roamed about the country robbing plantations, insulting and sometimes outraging women, inciting the resident negroes to like conduct, and keeping the whole country in constant terror. 119 Negro troops were quartered at Galveston in the winter, and were constantly giving trouble. In the latter part of February they broke loose from all restraint and spread terror over the city. A young lady, a member of one of the most respectable families, was assaulted and horribly treated, and several persons were attacked and shot at. The Bulletin of February 28 says, “On Saturday these outrages reached their climax, stimulated, no doubt, by the terrible homicide of the day. During Saturday and Sunday a reign of terror, which has not yet wholly subsided, held sway over the city.” After recounting a number of unprovoked attacks upon the citizens, it goes on to say, “The peace of the city must be preserved. If the police force can not do it, then let the military officials take entire control; and if they can not, then the citizens must do it for themselves.” There were numbers of other collisions less conspicuous. Ben C. Truman, the able correspondent of the New York Times, in a communication published March 5, says that large numbers of deserters from the volunteer regiments in the western part of the State were committing all sorts of murders and outrages in the country, most of which were charged against the people of that section.
5. The Frontier.
One of the most troublesome problems that the State had to face at this time was the condition of its frontier. Although this region had been subject to attack throughout the war, some attempt at organized protection had been made by the State and Confederate authorities. After the withdrawal of the Confederate troops from the west, the Indians, the Comanches in particular, began raiding and murdering in the exposed settlements. The people were unable to defend themselves from the sudden attacks and the depredations became more frequent and of greater magnitude. Throughout 1865 and 1866 the whole extent of the frontier from north to south was in constant terror and became almost depopulated. The Governor was besieged with petitions for troops and made repeated requests to General Wright for cavalry. Wright disclaimed any authority over the cavalry and referred the matter to Sheridan. Sheridan refused the troops on the ground that they were needed at interior garrisons for the protection of freedmen. Hamilton, too, believed that there were not enough troops in the interior to maintain order, and thereafter contented himself with appealing to Washington for more soldiers for Texas. However, it was not until 1867 that frontier posts were finally established and adequate protection was afforded.
It was not until November 15, nearly three months from the beginning of registration, that, a majority of the voters having qualified, a proclamation was issued fixing the date of the election for January 8, 1866. The convention was to meet in Austin on February 7 and the number of delegates was to be equal to the number in the Lower House of the State Legislature and distributed among the counties in like manner. Delegates were not required to be residents of the districts selecting them, and no person within the classes excepted from the general amnesty was eligible as a delegate unless pardoned by the President. This last provision was criticised as exceeding the Governor's instructions, for the only restriction imposed by the President's proclamation was that each delegate should have taken the amnesty oath.
Now that the election and the assembling of the convention were definitely provided for, candidates appeared and a livelier interest was shown in the questions that must come up for settlement. By this time the example of the other States and the known attitude of the President had wrought practical unanimity on the points that seemed most important: that slavery was a thing of the past and that the fact should be recognized in an amendment to the Constitution; that the war debt should be annulled or repudiated; and that the act of secession should be nullified. But as to the manner in which these things should be done, and as to the settlement of certain related problems, there was wide divergence of opinion. Should the secession ordinance be repealed simply, or declared null by reason of the failure of the war, or null and void from its inception? The war debt must be nullified, but what of a certain portion of the civil debt that had been used indirectly in prosecution of the war, and another portion that had been contracted in a manner prohibited by the Constitution of 1845? It was agreed that slavery must be abolished, but what of the status of the freedman? To what extent would it be safe and expedient to invest him with those civil rights that had long been the very foundations of liberty for the dominant race?
All of these were matters of the highest importance, but perhaps the last received the greatest attention. With respect to it most of the candidates showed varying degrees of conservatism. W. C. Dalrymple, who proved the successful candidate in Williamson and Travis counties, said in a published letter: “My opponents, . . . each and all, concede something to the negroes; some more, some less, approximating to equality with the white race. I concede them nothing but the station of `hewers of wood and drawers of water.' . . . If a republican form of government is to be sustained, the white race must do it without any negro alloy. A mongrel Mexico affords no fit example for imitation. I desire the perpetuation of a white man's government. . . . The negro is and must remain free. This is one of the results of the late conflict. He must be protected in person and property; this is due to justice and humanity, but I hope and believe that legislative wisdom can devise some mode of securing fully those rights without an equality in the courts of the country. Of course I am opposed to negro suffrage in whatever form or with whatever limitations it may be proposed.” 120 This was the ultra-conservative view. Another candidate, also successful, Colonel M. T. Johnson of Tarrant county, a moderate unionist, declared in a published circular his opposition to granting the negro any political rights whatever, and insisted that he should be made to work by uniform laws regulating pauperism, labor, and apprenticeship; but at the same time asserted the necessity of treating him with justice and kindness in his helpless condition. 121 A large number favored allowing the freedman a right to testify in cases in which a negro was concerned. A few, the most advanced, would have extended this right to all cases. There seems to have been only one candidate, E. Degener, a prominent German of San Antonio, who openly advocated negro suffrage.
The most notable contribution to the public discussion was a long and earnest letter to the people of Texas from John H. Reagan, then a prisoner of war at Fort Warren, Boston Bay, where he had been confined since his capture in May. This letter was truly remarkable for the clearness with which it grasped the real facts of the situation and forecast the results that must inevitably flow from a failure to apprehend the spirit prevailing among the people of the North. It was written on August 11 and was published in the Texas papers about the first of October. The State, Reagan thought, occupied the position of a conquered nation. The State government would not be restored until a policy was adopted acceptable to the will of the conquerors. “A refusal to accede to these conditions would only result in a prolongation of the time during which you will be deprived of a civil government of your own choice, and would continue subject to military rule.” In order to avoid this danger it was necessary to recognize the supreme authority of the United States government and its right to protect itself against secession, and to recognize the abolition of slavery and the right of freedmen to the privileges and protection of the law. It seemed probable, however, that this alone would not satisfy the people of the North; it was very probable, in fact, that they would demand nothing less than suffrage for the freedmen. Reagan thought the South in no position to resist such a demand, although bitter opposition was to be expected on the part of Southern men. The demand could be satisfied by: First, admitting the testimony of negroes in the courts, subject only to the same rules as applied to whites; second, fixing an intellectual, moral, and if necessary, a property test for the admission of all persons to the elective franchise, regardless of race or color, provided that no person previously entitled to vote should be deprived of the right by any new test. The results of such a policy would be to remove the grounds of hostility between the races and put an end to sectional and interstate agitation. 122 The public, however, was far from ready for a strategic move involving so many concessions, and a perfect storm of disapproval arose. Reagan was compelled to suffer for a time the opprobrium so often the lot of those who can see further into the future than their fellows. 123
The elections passed off quietly, only a small vote being cast because of the inclemency of the weather. Until the delegates assembled at Austin, as appointed, February 7, there was considerable doubt as to what element would be in control. It was soon apparent that a strong minority were “unionists.” Of these the more prominent were I. A. Paschal and E. Degener of San Antonio, John Hancock of Austin, always a stanch opponent of secession, but now inclined to a moderate policy; J. W. Throckmorton, later “conservative” Governor; E. J. Davis, later “radical” Governor; Shields, X. B. Saunders, Latimer, R. H. Taylor, Ledbetter, and J. W. Flanagan. A number of equally aggressive “secessionists” were present, some of whom were in the classes excepted from the general amnesty and had so far failed to secure presidential pardon. The most conspicuous was O. M. Roberts, who had been president of the secession convention in 1861 and whose presence was therefore especially resented by those who regarded secession as treason. Of the same class were ex-Governor H. R. Runnels, John Ireland, C. A. Frazier, D. C. Giddings, R. A. Reeves, ex-Governor Henderson, J. W. Whitfield, and T. N. Waul. A considerable element in the convention, the group which really held the balance of power, should be classed as merely conservative. They were likely to vote against the unionists out of opposition to radicalism rather than because of hostility to the United States government.
The convention took up its work in the most leisurely manner. The greater part of the first three days was consumed in the mere preliminaries of organization. J. W. Throckmorton was elected president on the second ballot. His election was regarded with satisfaction on all sides. He was an original unionist, one of the seven who had voted against the ordinance of secession in 1861, but he had entered the Confederate service as commissioner to the Indians and rose to the rank of brigadier-general. As president of the convention he was drawn more and more to the side of the majority and became the chief defender in Texas of President Johnson's policy.
The first skirmish between the opposing factions came on the third day when Paschal introduced a resolution to appoint a committee to acquaint the Governor that the convention was organized and “ready to take the constitutional oath” and to receive any communication he thought proper to make. 124 The secessionists were up in arms immediately against taking the constitutional oath. Roberts, Reeves, and Frazier hotly insisted that the delegates had met only in “a primitive capacity” to make a Constitution and to organize a government; that they had no status as officers of the United States, and therefore it was not incumbent upon them to take an oath of such character. Paschal and Saunders defended the resolution by pointing out that as the convention had been called by the authority of the United States to frame a State government in accordance with the laws of the United States, it was just as necessary for the members to take the regular oath as it was for any other officials acting under that government to take it. At this juncture, Hancock, reputed a “soft unionist,” offered as a compromise an amendment that required only that those members who had not already done so should take the amnesty oath instead of the objectionable one. 125 This was by no means satisfactory to the unionists and in an effort to strike out the amendment they were defeated by the narrow margin of thirty-nine to forty-one. Hancock's amendment was adopted and the resolution passed. It was the first alignment of forces and it is worth noting that the president, Throckmorton, supported Paschal's resolution. Before the next day the victorious reactionaries repented of their action. It would not do for the news to go abroad that the first act of the convention had been an expression of hostility, or at least of disrespect, toward the national Constitution. After the hurried consultation they decided to retrace their steps. Immediately after convening next morning, Hancock moved a reconsideration of his resolution, and it was carried by an overwhelming majority, only eleven irreconcilables, among whom were Giddings, Ireland, and Runnels, opposing. Paschal then offered the resolution for taking the regular constitutional oath, and it passed this time without a division.
On the same day the message of Governor Hamilton was received. He recapitulated the instructions contained in his appointment, explained the necessity for his going beyond the letter of them in placing on the registration boards persons not designated by the President, and called attention to the fact that, contrary to the provisions of his proclamation governing the election, several persons who had been excepted from the amnesty and had not received the special pardon, were now occupying seats in the convention. After defending his course in not calling the convention earlier, and expressing concern at the apathy of the people in the elections, he pointed out that the other States had by too hasty action passed measures that debarred them from securing representation in Congress, and suggested that Texas might, by observing the developments elsewhere, profit by this delay. It was expected by the President, by Congress, and by the people of the United States that such changes would be made in the organic law of the State as would make it conform in spirit and principle to the actual changes wrought by the war. In the first place it would be expected that the convention express a clear and explicit denial, in such form as seemed proper, of the right to secede from the Union. In the second place it would be expected to manifest “a cheerful acquiescence” in the abolition of slavery by a proper amendment to the Constitution. Both of these questions had already been definitely settled on the field of battle and the sole function of the delegates was to recognize fittingly an accomplished fact. The next duty of the convention would be to repudiate the debt incurred by the State in support of the war, for to provide for its payment would be to justify its purposes. What portion of the total public debt incurred since the beginning of the war was of this character it would be difficult to ascertain, but it seemed that it would probably amount to three-fourths, and the report of ex-Governor Pease and Swante Palm was furnished to facilitate an investigation. Finally, and most important of all, was the determination of the civil and political status of the freedmen. Here the Governor expressed an apprehension that his views would not be acceptable to the majority of the convention, but he repeated his previous warning that if any legislation tending to re-establish slavery or to nullify any of the proper effects of emancipation were indulged in, or anything less than the full civil rights of free citizens were granted the blacks, it would delay indefinitely the return of the State to its normal place in the Union. In addition to full rights in the courts and in the holding of property, he earnestly advised the convention to make it possible in the future for the negro to attain to political suffrage. “I do not believe,” he said, “that the great mass of the freedmen in our midst are qualified by their intelligence to exercise the right of suffrage, and I do not desire to see this privilege conferred upon them,” but, “if we fail to make political privileges depend upon rules of universal application, we will inevitably be betrayed into legislating under the influence of ancient prejudices and with a view only to the present. I think that human wisdom can not discern what is to be the future of the African race in this country. ... I would not be willing to deprive any man, who is qualified under existing laws to vote, of the exercise of that privilege in the future; but I believe it would be wise to regulate the qualifications of those who are to become voters hereafter by rules of universal application.” 126
On the next day the Governor's complaint about the presence of unpardoned rebels in the convention bore fruit in a resolution by E. J. Davis to the effect that no person excepted from the amnesty should be entitled to a seat until pardoned. Ex-Governor Henderson offered a substitute referring all credentials to the Committee on Privileges and Elections, and the matter was finally referred to that committee. On the next day the committee called before it the delegates whose seats were thus in question, Runnels, Waul, Whitfield, and Ireland, and after consideration reported that these had all made application for special pardon and that the applications had been endorsed by the Governor. A resolution was finally passed allowing them to retain their seats pending the action of the president. 127
The convention got down to work very slowly. It had been in session a full week before any move at all was made with respect to the secession ordinance. It was still four days later before the abolition of slavery was brought up for discussion. In fact as much time was taken up with the mere preliminaries of organization as had been required for the complete work of any of the State conventions of the previous summer. 128
On February 13 Latimer, of Red River County, introduced an ordinance on the first serious question with which the delegates were called upon to deal, the disposition of the ordinance of secession. There proved to be a great variety of opinions as to its character, and upon the subject party lines came to be closely drawn. The chief point at issue was whether the secession ordinance had been null and void from the beginning and that there had never been such a thing as “the right of secession”; or whether it was rendered null and void as a result of the war, with the clear implication that the right of secession had been at least an open legal question until the war had settled it. Latimer's ordinance simply declared null and void and of no effect from the beginning the ordinance of secession and all the other acts of the convention of 1861. Hancock proposed a substitute to the effect that the ordinance had been “in legal contemplation void, being a revolutionary measure, and subject to the general principles of revolutions.” 129 This was a clever compromise, but suited neither side. On the next day Henderson offered an ordinance declaring that, inasmuch as the government of the United States “by the exercise of its power” had determined that no State had the constitutional right to secede, the said ordinance was repealed. 130 Later, Reeves wished simply to accept the decision of the war and, in order to restore the State to its former relations to the Federal government, merely to renounce the doctrine as asserted in the aforesaid ordinance of secession 131 Judge Frazier was able to evolve another interpretation: that the inhabitants of Texas were a conquered people, governed by the laws of war and of nations, by which alone the United States government was restrained, and that these laws required no more of the people than that they should accept the will of the conqueror; and hence it was “not necessary to repeal, annul, or declare null and void that ordinance, since the surrender of the South had settled the question.” 132 X. B. Saunders introduced an ordinance to the same effect as Latimer's, declaring the act of secession and all other acts of the secession convention null and void ab initio. This was the position of the stanch unionists. When the Committee on the Condition of the State reported, its ordinance was one that simply acknowledged the supremacy of the Constitution of the United States and declared the troublesome act “annulled and of no further effect.” 133 The minority report of this committee asserted that as no warrant for the act of secession could be found in the Constitution which was the supreme law of the land, it must have been a nullity from the beginning; and even viewing it as a revolutionary measure, the result of the struggle forced the same conclusion, for “abortive attempts at revolution never impress any changes upon the fundamental laws of the government.” Moreover, the report of the majority virtually asserted that the secession ordinance still had a legal existence up to the present time and was in actual force—a theory in every way untenable. The minority reported an ab initio ordinance. 134
The real fight over this question began on March 9 and extended over three days. The ab initio men, or “radicals,” as they were beginning to be called, struggled hard to substitute some form of the minority report for that of the majority. Not quite equal in numbers to their opponents, they failed in this, and then resorted to obstructive tactics. Finally, the conservatives by sheer strength pushed through to engrossment, on the afternoon of the 12th of March, by a vote of 43 to 37, the ordinance finally adopted,—acknowledging the supremacy of the Federal Constitution, declaring the act of secession null and void without direct reference to its initial status, and distinctly renouncing the right previously claimed by Texas to secede from the Union. 135
The radicals were not at first disposed to accept their defeat gracefully. At a caucus of the minority held that night in the office of the Secretary of State, Hancock strongly urged the withdrawal of the ab initio men for the purpose of breaking a quorum and dissolving the convention in order that a new one might be called. However, Governor Hamilton would not promise to call another one at once, and there was nothing for them to do but to return to their seats. 136 Flake's Bulletin, a radical weekly paper of Galveston, declared as late as March 21, that the convention had “shown its hand by passing an emasculated ordinance known to be unsatisfactory to Union men everywhere”; that the majority had proven itself disloyal; that “the sole intent and meaning of this ordinance was to gain a rapid entrance into the national councils in order to renew the struggle and fight the rebellion over again”; and it suggested that as the majority was “still wedded, like Ephriam, to its idols,” it might yet “become the duty of the loyal minority to withdraw from the convention.”
It had been widely asserted by the radicals that nothing less than a distinct admission of the original illegality of the attempted secession would satisfy President Johnson and the North, and that without such an admission the new State government would not be recognized; and indeed the Houston Tri-Weekly Telegraph, the ablest of the conservative papers, had pointed out in November that the result of the fall elections in the North meant that the issues of the war had not been abandoned by the South in terms sufficiently decisive, and that to repeal the ordinance would not be enough, “for if it was ever valid it still is,” but that “the whole idea of reserved State sovereignty and of partnership in the government must be expelled from the system forever.” On the other hand it could hardly have been expected that the secession leaders would be willing to violate their records of “political consistency”; 137 while there were many others who refused to “brand as traitors their fathers, brothers, and sons who had died in battle for the South.” 138 In commenting on the action of the convention, the Telegraph of March 17 says: “They (the radicals) desired the convention should say that secession or revolution was a crime in itself, and consequently void. It was understood that this significance should attach to the words `null and void, ab initio.' The idea attached to the ordinance passed is that the war has decided that it was null and void ab initio. On this difference the issue is raised. It is whether the people in their sovereign capacity shall declare that they did wrong knowingly and willingly in 1861 in attempting secession.” Flake's Bulletin, in commenting on the foregoing, says: “The difference in position is defined with unusual clearness and great candor. . . . We do certainly desire that the ordinance of secession be declared a wrong knowingly forced upon the people of Texas by their political leaders. We contend that rebellion was wrong, that it was, in the theological language, original sin, that it was malum in se, and that the next rebellion will be just like it, wrong from the beginning.”
The most important subject that engaged the attention of the convention was the status to be given the negro. There was practical unanimity of opinion in regard to the abolition of slavery. All were now agreed that the institution had ceased to exist, for the Thirteenth Amendment had been ratified and declared in force in December; neither was there any division of opinion concerning the right of the freedmen to be secure in person and property. There was considerable debate upon the question of admitting negro testimony in the courts. The majority of the members were willing to admit such testimony in any case, civil or criminal, involving a right of, or injury to, any of them in person or property; there was a large and active minority, chiefly the political friends of Hamilton, that strongly urged the admission of negro testimony in all cases under the same rules that governed the testimony of the whites. 139 The latter proposition was repugnant to popular sensibilities because it was regarded as the first step toward social equality, and this was the chief argument against it, though it was also strongly urged that if the negro were allowed to testify only in cases affecting the negro, he was legally placed upon a better foundation than the white man, since he would be able to subpoena witnesses from both whites and blacks, while the white man, where no negro was involved, could summon only those of his own color. 140 The radicals answered that a liberal policy was expected, nay, demanded by the government at Washington and backed by Northern sentiment, and would be prerequisite to readmission to the national councils; and furthermore, it was pointed out that as long as the freedmen labored under any disabilities in the civil courts there was no prospect of a release from the annoyance of the Freedmen's Bureau. The article first reported by Hancock from the Committee on General Provisions of the Constitution, February 17, provided that slavery should not exist in the State and that freedmen should be secure in all rights of person and property, and should not be prohibited from testifying in any case affecting one of their own color. A number of amendments were offered to this section defining the rights of freedmen in the courts, but despite the efforts of a few to place closer restrictions thereon, and of a strong minority to extend them to all cases, the provision went through essentially unchanged. As finally adopted, the ordinance, which became Article VIII of the Constitution, declared that African slavery having been terminated by the United States government by force of arms and its re-establishment prohibited by an amendment to the Constitution of the United States, neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party should have been duly convicted, should exist within the State. Negroes were to be protected in their rights of person and property; to have the right to sue and be sued, to contract and be contracted with, to acquire and transmit property; and all criminal prosecutions against them were to be conducted in the same manner and with the same penalties as in the case of whites. They were allowed to testify orally in any case, civil or criminal, involving the right of, injury to, or crime against any of their own race in person or property, under the same rules of evidence that were applicable to the white race; and the Legislature was empowered to authorize them to testify as witnesses in all other cases, under such regulations as should be prescribed “as to facts hereafter occurring.” 141 This last clause, if not distinctly a concession to the minority, at least wisely left the matter open for determination according to future developments. Whether the Texans were more liberal in this respect than the delegates to the other State conventions or whether they felt themselves driven to this position by the Civil Rights Bill then under consideration in Congress is not easily apparent. Truman thought them freely inclined to favor the negro; 142 and it was evident that few of them believed that the bill could pass over the President's veto. Moreover, the most of them, including many that had favored the most liberal policy toward the negro, were very hostile to that bill because it invaded a field which they regarded as being exclusively under the jurisdiction of the States.
The idea of negro suffrage found little favor on any side. Degener offered a long minority report from the Committee on Legislative Department in advocacy of unrestricted suffrage, but he stood practically alone. Few, even of those who did not oppose it, would openly advocate it. 143 On the whole, Texas had granted the freedmen more civil rights than had any other southern State, though she had not gone as far as it was understood that President Johnson desired. Still, it was asserted by the radicals, now becoming identified with the anti-Johnson party, that it was the President's veto of the Freedmen's Bureau Bill during this time that had encouraged the majority to refuse the negro wider privileges. 144
The question of the public debt presented a peculiar difficulty. There was no hesitation in repudiating the war debt, but the third section of the ordinance reported by the Committee on Finance repudiated the entire civil debt incurred between January 28, 1861, and August 5, 1865. 145 On this point there was a sharp debate, but the majority in its favor, comprising men of both parties, was 147 so strong that obstructive tactics availed little; and with slight modifications the ordinance was passed on March 15. The reasons advanced for repudiating the civil debt were: (1) that the treasury warrants, comprising the greater part of it, had been issued in plain violation of the Constitution of 1845, which must be regarded as still in force; 146 (2) the State authorities had recklessly issued warrants to the stupendous amount of nearly fifteen millions of dollars, and to impose upon the State the obligation to remove such a mountain of debt, even though the warrants be redeemed at face value at time of issue, would not only drive away immigration but would bankrupt the State; (3) that nearly all of these warrants had found their way into the hands of the “gang of heartless stay-at-hame speculators,” who had shirked their duty during the war, and it would be unfair to tax for their benefit the poverty-stricken soldiers in the ranks; (4) that a large amount of the debt, as much as three millions of dollars, had been issued to regulators for hunting down and executing without trial loyal citizens of the United States then resident in Texas. 148 How much support each one of these arguments contributed to the measure it would be difficult to determine; but they combined strong legal and partisan reasons; they presented an array that was overwhelming. Perhaps, however, this act was attacked with more bitterness by the press than all the other measures together. Certain of the conservative journals in particular exhibited a resentment that was most bitter. 149 The San Antonio Herald, which had shown some anxiety on this point previous to the convention, asserted that the warrants of the State had nothing on their face to show that they were in any way connected with the rebellion; that most of the debt was for purely civil services and that the rest was for the defense of the frontier against the Indians. The State Gazette declared the repudiation an act of bad faith, one that had not been required by the Federal government, and not adopted in the other States of the South that had suffered far worse during the war than had Texas.
Although these important measures concerning secession, the freedmen, and the war debt were the only ones that the convention had been specifically required to take up, there were other matters that naturally came up for consideration. An ordinance of great importance was one recognizing certain acts of the government de facto as it existed during the war. When the Federals first took control of the State all the acts of the State government subsequent to the ordinance of secession were declared illegitimate. This, however, was felt to work an unnecessary hardship in many cases, and Governor Hamilton had gradually adopted the policy of recognizing as valid such acts and laws as were not in conflict with the laws of the United States. It was generally felt to be absolutely necessary for the peace and well being of society that the private law status of citizens should not be disturbed by reason of the war. Under the authority of the State government during the war property had been transferred; estates administered; contracts entered into; business relations formed; courts held, judgments rendered, and decrees executed; marriage relations entered into and children born. To have disturbed or destroyed the legitimacy of all these acts would have been to undermine and destroy the very foundations upon which depended the stability of society. Such a course could have subserved no useful purpose in State policy, for these acts could not be construed as having been “in aid of the rebellion.” Consequently, long before the convention was called, the provisional authorities had made and recognized a distinction between those acts in aid and support of the rebellion and those which had been primarily for the purpose of regulating the private relations of the people and without any direct relation to the war. But notwithstanding this distinction was already recognized and acted upon, it was necessary for the convention to embody it in the organic law of the land in order to insure the permanence of the principle. The ordinance passed on the subject was a sort of omnibus bill, covering a wide range of related subjects. All laws and parts of laws enacted by the Legislature subsequent to the 1st of February, 1861, and not in conflict with the Constitution and laws of the United States, nor with the Constitution of Texas as it was prior to that date, nor in conflict with the proclamations of the Provisional Governor, were declared to be in full force as laws of the State; and all acts of the different officers of the State, executive, legislative, and judicial, done in compliance with the laws not in conflict as above stated, were declared in force, unless annulled by act of the convention. All acts of the secession convention were annulled. The acts of the provisional government and its officers were declared valid. Furthermore, it was provided that no suit or prosecution should be maintained or recovery had against any agent, bailee, executor, administrator, or trustee, who had been compelled to deliver up property or money held by them to Confederate States' receivers. No person was to be sued or prosecuted for any action done in compliance with superior orders under Confederate authority. 150 Persons absent from Texas during the war, against whom any judgment was rendered in a civil suit during such absence, were allowed two years from April 1, 1866, in which to reopen and set aside such judgment, with the effect to set aside any sale or disposition of any property affected. 151
A number of minor matters are worthy of passing notice. Certain amendments were added to the Constitution—that of 1845—lengthening the terms of most State officers to four years and increasing the salaries. Some changes were made in the form and jurisdiction of the courts with a view to greater efficiency. The Governor was requested to petition the President for more adequate frontier protection. An ordinance was passed on the last day providing for a possible division of the State, the vote standing 31 to 17. 152 One of the last acts of the convention was the appointment of four delegates who were to proceed to Washington and lay before the President the result of their deliberations and to “endeavor to impress upon the national authorities the loyal and pacific disposition of the people of Texas.” On several occasions the majority had attempted to get through resolutions endorsing President Johnson's policy, but action was delayed until at the last minute the measure failed for want of a quorum.
The action of the convention in passing the ordinances concerning secession, the freedmen, and the debt was to be regarded as final, but the amendments to the Constitution were to be voted upon at the first general election for State, district, and county officers, which was fixed in June. The new State government was to be inaugurated in August.
The convention adjourned on April 2, after a session of eight weeks. By this time the two parties, radical and conservative, which had been in evidence almost from the first, had become something more nearly approaching definite organizations. The acts of the convention were looked upon as being chiefly the work of the conservatives, and were in consequence bitterly attacked by the radical newspapers, especially by the Southern Intelligencer, which had become the recognized organ of the radicals. The Intelligencer declared that the convention had done things it ought not to have done and had left undone the things that it ought to have done. It had failed to declare secession null and void from the beginning; only a portion of the civil rights had been conceded to the freedmen; and it had failed to submit all its ordinances to the people for ratification. Nor were the conservative papers altogether pleased with the last days of the session, and at first they did not attempt to conceal their dissatisfaction. Each party in the convention had begun maneuvering in anticipation of the June elections, and in haste to get an early start in the canvass and unwilling to wait for a State nominating convention, each had resorted to the old expedient of a caucus nomination. The San Antonio Herald, the Austin State Gazette, and the Houston Telegraph joined in denouncing this caucus nomination, which, taken with the refusal to submit certain of the ordinances to the people, they regarded as proof that the delegates cared only to grab all the offices and considered this as more important than the welfare of the State. Some of these papers, too, were still smarting over the repudiation of the civil debt. But this did not last long; the conservatives were soon forced by the pressure of party strife to accept and defend the work of the convention and to support the caucus-made nominees of their faction.
79. MS. in Johnson Papers.
80. General pardon and amnesty had been proclaimed by President Johnson for all who had taken arms against the United States, except certain specified classes, provided they would first subscribe to the following oath: “I....., do solemnly swear (or affirm), in the presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the United States and the union of the States thereunder, and that I will in like manner abide by and faithfully support all laws and proclamations which have been made during the existing rebellion with reference to the emancipation of slaves. So help me God.” The classes, fourteen in number, excepted from the privileges of the general amnesty were, chiefly, high officials under the Confederacy, or those who had left the service of the United States to take service with the Confederacy, or those who owned property to the value of over $20,000. It was necessary for these to secure a special pardon from the President.—Messages and Papers of the Presidents, Vol. VI, pp. 310-312.
81. In one important particular a limitation was placed upon the jurisdiction of the courts. Suits for the collection of debts and for the determination of rights of every kind could be instituted, and in those involving titles to land, damages, etc., the courts could proceed to final judgment and execution; but in suits for the collection of debts where the plaintiff was entitled to a writ of injunction, sequestration, or attachment, the court could not proceed to final judgment and execution.—See proclamation of Sepember 8, Executive Records, Register Book, 281.—The reason for this was that, in the prevalent condition of disorder and financial depression, property disposed of by forced sale would bring little or nothing and an injustice would be worked upon the debtor. Later, by proclamation of December 5, the courts were empowered to proceed in such cases to final judgment, but execution was stayed.
82. A. J. Hamilton to I. R. Burns, Executive Records, Register Book, 281. The courts, thus left to themselves, varied greatly in their rulings, Judge C. C. Caldwell, in his charge to the grand jury of Harris county, instructed it that the abolition of slavery “has swept away those distinctions both as to protection and liability to punishment which have hitherto existed between whites and blacks.” These distinctions and the exclusion of negroes as witnesses had been necessary to the secure tenure of the slaves; but “when the reason of the law fails, the law likewise fails,” therefore “the late slaves, now freedmen, stand upon terms of perfect equality with all other persons in the penal code.” Hence all persons were alike subject to the penal law, and it necessarily followed “that persons of African descent” were “competent witnesses where any of their race were parties.” Tri-Weekly Telegraph, November 29, 1865. This was the view that Hamilton himself held. In most cases, however, the courts considered themselves bound by the State laws of 1860 which prohibited negro testimony in any form.
83. This rule was later so far modified as to allow attorneys and other persons in the excepted classes, when they had been recommended by the Governor to the President for special pardon, to follow their professions pending the decision of the President.
84. Letter of James H. Bell, E. M. Pease and others; also of A. J. Hamilton in MS., Johnson Papers.
85. The Tri-Weekly Telegraph had long before, July 18, expressed identical views. In commenting on the Governor's address it emphatically endorsed his recommendations and urged the people to “support them promptly and in good faith.”
86. For these meetings see the Tri-Weekly Telegraph, Texas Republican, State Gazette, San Antonio Herald, and other papers throughout July and August, 1865.
87. See Flake's Bulletin, July 22, 1865.
88. See The Tri-Weekly Telegraph, November 29, 1865.
89. Jno. A Buckholts to Governor Hamilton, MS. in Official Correspondence.
90. MSS. in Official Correspondence.
91. Executive Records, Register Book, 281.
92. Various MSS. in Official Correspondence.
93. B. F. Barkley to Governor Hamilton, MS. in Official Correspondence.
94. R. B. Sanders to Anthony Bryant, endorsed by Col. M. M. Br