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Constitution of 1869

S. S. McKay, rev. by Carl Moneyhon General Entry

The Constitution of 1869 was produced by the Constitutional Convention of 1868-1869. A combination of Moderate and Radical Republicans controlled that convention and the constitution they produced reflected their Unionism, acceptance of Congressional Reconstruction, and vision of a different Texas from that existing prior to Reconstruction. The new constitution contained elements markedly different from the constitution that preceded it and its unique character relative to previous Texas constitutions may best be understood through a comparison with the Constitution of 1866.

One of the most radical aspects of the Constitution of 1869 was its statement in the Bill of Rights on the legal foundation of the document. The earlier constitution had asserted basic state sovereignty, declaring that the document represented the extension of political power inherent in the people of the state. As such, the people of the state had the right to alter, reform, or abolish the government as they wished. The Constitution of 1869 insisted that it was framed in harmony with the national constitution and in subordination to it. It acknowledged the supremacy of the Constitution of the United States in matters of law. As an instrument subordinate to national authority, the new constitution provided that it could be changed only with the consent of the national government. The constitution thus accepted the theory that the government of the United States was the ultimate source of sovereignty.

As to what people constituted the basis of government, the new constitution embraced the demands of the Fourteenth and Fifteenth Amendments to the United States Constitution relative to citizenship and voting rights. Where the Constitution of 1866 excluded African Americans, as well as women, from the rights of citizenship, the Constitution of 1869 defined the electorate as consisting of all male citizens twenty-one years of age or older, without distinction of race, color, or former condition. The constitution did have some restrictions on voting rights and required a voter to live in the state for at least one year and in the county where he voted for sixty days. The only exceptions were those excluded in previous constitutions--those in asylums or prisons, convicted of felonies, unsound of mind, and anyone disqualified from voting under the Constitution of the United States. The constitution did provide for a reinstatement of voting rights for the latter should their disqualification be removed by Congress.

The new constitution also included a significant change in the qualifications for office holding in the state, a change that made it easier for newcomers to obtain office. The Constitution of 1866 previously required members of the Senate and House of Representative to have lived in the state for five years and in their county or district for one year. The new constitution required members of the House of Representatives to have lived in the state for two years and in their district for one; a senator had to have lived in the state for three years and in his district for one. The new constitution also required legislators to be registered voters. It also increased the term of senators from four to six years. The 1869 provisions for the governor were the same as previous constitutions, providing for a four-year term and requiring him to be thirty years of age. It, however, reduced the residency requirement from six to three years. Provisions for other executive offices remained as before except for the residency requirements being reduced as for the governor. The secretary of state and attorney general were to be appointed; the comptroller of public accounts, treasurer, and commissioner of the General Land Office were to be elected.

Changes in the Judicial Department in the Constitution of 1869 showed a trend toward greater centralized control over issues of law and order than found in previous constitutions. Under the Constitution of 1866 judges of the Supreme Court were elected and held their office for ten years. District Judges also were elected and served for a term of eight years. The Constitution of 1869 made all of these judges appointees of the governor, although they held their place with the advice and consent of the Senate and they could be impeached. The term in office for members of the Supreme Court was reduced to nine years, although that of district judges remained at eight. The number of justices on the Supreme Court was reduced from five to three justices.

The Constitution of 1869 also attempted to impose controls on the labor system. As to slavery, the new constitution declared that except as punishment for crime the institution would no longer exist. The document went further, however, in declaring that the importation of persons under the name of “coolies” should never be tolerated within the state, a provision that responded to contemporary discussions of importing Chinese laborers to replace the Black laborers who previously worked the state's plantations as slaves. In addition, the constitution forbade the creation of any system of peonage that reduced workers to practical bondage, a response to the potential abuse in the tenant labor system already emerging in the state.

A series of sections of the constitution looked particularly at the economic development of the state and were designed to encourage both immigration and the development of state lands. A provision that had potentially significant implications for the freedmen was a homestead law of the sort that had not existed in previous constitutions. The new constitution proposed to donate one hundred and sixty acres of land out of the public domain to every head of a family who did not have a homestead. It also offered eight acres of land to any single man, twenty-one years of age. The only conditions applied to this gift was that the individual locate and occupy the land for a period of three years and pay for whatever fees were needed to register the land.

Connected to the homestead law was a belief that the public domain should be reserved for actual settlers and that any revenue derived from state lands should be used for creation of a public school system. This had not been the case previously and the Constitution of 1869 included a proviso that forbade the granting of the public domain to anyone other than an actual settler. This clause specifically prevented the legislature from making further grants to railroad or other corporations. As to the land that had previously been granted to the railroad companies, the constitution declared that any land that had not already been given away from any earlier grant would be forfeited should the requirements of the grant not be met. Theoretically, the land recovered from the railroad companies would be opened to actual settlers or sold for the benefit of the state school fund.

While previous constitutions committed Texas to the development of a public school system, the new constitution provided explicit directions regarding what that system should look like and how to fund it. The system was headed by an elected superintendent of public instruction, not appointed as provided in the 1866 constitution. With a specificity not present in previous constitutions, the Constitution of 1869 required the legislature to divide the state into school districts and provide for the creation of school boards that could legislate, a provision allowing the boards to raises taxes to provide for the construction and operation of the schools. The required statewide uniformity included the provision of a free education for all the inhabitants of the state between the ages of six and eighteen, regardless of sex or race. It also included the requirement that the legislature make school attendance mandatory and that the schools operate for at least four months of each year. As in the past, the school system was to be supported specifically by a Public School Fund created from the sale of any portion of the public lands, but the new constitution also required that one fourth of the revenue derived from general taxation and an annual poll tax of one dollar on all males between the ages of twenty-one and sixty be channeled to the school fund. Responding to previous uses of the school fund to support railroads and other corporate development, the constitution specifically prohibited the appropriation of the school fund for any use other than support of schools.

The Constitution of 1869 further promoted economic growth through a section calling on the legislature to create a Bureau of Immigration. The bureau was to be headed by a superintendent appointed by the governor with the advice and consent of the Senate. The legislature was permitted to appropriate funds for this bureau tasked with the creation of agencies overseas and operating in American ports. The constitution even proposed the use of state funds to pay for immigration from Europe and the transportation of newcomers within the state, although specifically leaving out the possibility of immigration from Africa or Asia.

Overall the Constitution of 1869 embraced an abandonment of the concept of state rights and an acceptance of a more nationalistic view of the body politic. It also proposed a more active role for state government in supporting the economic and social development of the state through the gift of lands, education, and the promotion of immigration. Its centralizing tendencies, abandonment of state's rights, and specific restrictions on the use of state resources to support private corporations such as the railroads, however, prompted significant opposition throughout its existence. That opposition helped produce the ultimate end of the government created under it and the writing of a new constitution in 1876.

Betty Jeffus Sandlin, The Texas Constitution of 1868-1869 (Ph.D. dissertation, Texas Tech University, 1970). Constitution of the State of Texas, Adopted by the Constitutional Convention under the Reconstruction Acts of Congress Passed March 2, 1867, (https://tarltonapps.law.utexas.edu/constitutions/texas1869), accessed November 20, 2020. Carl H. Moneyhon, Republicanism in Reconstruction Texas (Austin: University of Texas Press, 1980). Carl H. Moneyhon, Texas after the Civil War: The Struggle of Reconstruction. (College Station: Texas A&M University Press, 2004).

Time Periods:

  • Reconstruction

The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this entry.

S. S. McKay, rev. by Carl Moneyhon, “Constitution of 1869,” Handbook of Texas Online, accessed January 24, 2021, https://www.tshaonline.org/handbook/entries/constitution-of-1869.

Published by the Texas State Historical Association.

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