University of Virginia Library

CHAPTER V

THE CONSTITUTIONAL CONVENTION OF 1867-1868

In accordance with the order of the commanding general
of the District, the Convention assembled in the hall of the
House of Delegates of the capitol on December 3, 1867. The
election of October resulted in the choice of the most heterogeneous
and remarkable assortment of lawmakers that ever
assembled in the Commonwealth. There were native Virginians,
white and colored, and men from beyond her borders;
there was a delegate, a Northerner, who had commanded a
company of negro troops in the Federal army against the
people of the State; there was a deserter from the Confederate
army; there were adventurers; there were ex-slaves;
there were educated men and also ignorant men who could
speak the English language only in dialect. A contemporaneous
account of the personnel of the Convention, given in the
Richmond Dispatch of April 20, 1868, is as follows:

"The Convention consisted of one hundred and five members,
of whom some thirty-five were Conservatives, some
sixty-five were Radicals, and the remainder doubtful. The
Radicals were composed of twenty-five negroes, fourteen
native-born white Virginians, thirteen New Yorkers, one
Pennsylvanian, one member from Ohio, one from Maine, one
from Vermont, one from Connecticut, one from South Carolina,
one from Maryland, one from the District of Columbia,
two from England, one from Ireland, one from Scotland, one
from Nova Scotia, and one from Canada. Of the fourteen
white Virginians belonging to this party, some had voted for
secession, others had been in the Confederate service, others
were old men whose sons had been in the Confederate army;

hardly one had a Union record. A large proportion of the
Northerners and foreigners had drifted here in some noncombatant
capacity."[1]

The officers of the Convention were equally as miscellaneous
a group. Its chairman was John C. Underwood of New
York, and the body over which he presided has been known in
history, therefore, as the "Underwood Convention," and the
constitution that it made, as the "Underwood Constitution;"
its secretary and sergeant-at-arms were from Maryland; the
stenographer, an Irishman, was lately from Maryland also;
the assistant clerk was from New Jersey; the chaplain was
from Illinois; the two doorkeepers were negroes; the boy
pages, with one exception, were negroes or sons of Northern
men or foreigners; and the clerks of the twenty standing committees,
with two or three exceptions, were Northern men
or negroes.[2]

The most prominent of the white Radicals were John C.
Underwood, Judge Edward Snead, John Hawxhurst, Edgar
Allen, Charles H. Porter, and David B. White. The leading
negro Radicals were Thomas Bayne, Lewis Lindsay, and William

Tobacco Field

A. Hodges. Several negro delegates took active part in
most of the debates. Dr. Bayne, of Norfolk, was particularly
talkative.

The Conservatives were led by John L. Marye, Jr., and
Eustace Gibson. Most of them were new men in the political
affairs of the State. There was no lack of ability among them,
however. Although hopelessly in the minority, they served
as a check upon the majority, and they were ready to investigate
and to expose any false or dishonest move on the part
of the Radicals. Whenever there was a division among the
Radicals on account of the extreme measures of the negroes
and their white allies, they were enabled to aid the less extreme
faction in defeating much obnoxious legislation. Their superior
education and mental ability gave them an advantage
in debate over their opponents far in excess of their numerical
strength.

The first few weeks were occupied in organization, and
in general political discussions, for the most part outside of
the province of the Convention. For instance, much time was
spent in discussing the Reconstruction policy of Congress.
There was a long debate over resolutions introduced in the
Convention expressing approval of the action of Congress in
impeaching President Johnson. There were other discussions
equally futile.

It was not until January that the committees started to
make their reports, and that work on the constitution began.
When the first section of the preamble was brought up for
discussion on January 6, 1868, James W. D. Bland (colored)
moved, that, in place of the word "men" in the clause, "that
all men are by nature equally free and independent," as
reported from the committee, there should be substituted
the words "mankind, irrespective of race or color." The
motion was defeated through the influence of Thomas Bayne
(also colored) who had pledged himself to his constituents
that he would "endeavor to aid in making a constitution that

should not have the word black or the word white in it."[3] But
when the debates over mixed schools were in progress,
Bayne proposed an amendment to the committee's plan so
as to place whites and blacks in the same schools. The amendment
failed to get the support of enough Radicals to be
adopted, in spite of the efforts on the part of the negro delegates,
and the threats of Bayne, Lindsay, Hodges, and others,
that, if it were not supported by the white Radicals, the
negroes would withdraw from the Republican party.[4]

The important question of taxation occupied much of the
time of the Convention, and the tax system of the State received
some much needed reform. The most important service
which it rendered was the provision which it made in the
constitution for the establishment of a state public free school
system.

The question overshadowing all others in the debates of
the Convention was that of suffrage. It was the subject of
discussion throughout the session. The first long debate on it
was occasioned by the consideration of that section of the bill
of rights which affirmed, "That all elections ought to be

free, and that all men, bearing sufficient evidence of permanent
common interest with, and attachment to, the community have
the right of suffrage." John Hawxhurst moved that this be
amended by the substitution, "That all elections ought to be
free; and that all men (not disqualified by crime, insanity or
idiocy) have the inherent right of suffrage."[5] The doctrine of
the inherent right to vote and to enjoy other political privileges
was warmly upheld by the negroes and some of the white
Radicals, but it was repudiated by the Conservatives and
moderate Radicals. Hawxhurst's motion was defeated by a
vote of 47 to 82.[6]

On January 14, General B. F. Butler, of Massachusetts,
spoke before the Convention, upon the invitation of the
Radicals. After explaining to that body, in the most paternal
fashion, just how a constitution should be made, he advised
the enfranchisement of all freedmen, and the disfranchisement,
not only of those Confederates who had held civil or
military positions, but also of those who had been prominent in
business affairs before and during the war, such as directors
of corporations, presidents of banks, etc. He advocated an
educational test for the franchise like that which existed in
Massachusetts—not that those who could qualify in this manner
would be more capable of using rightly the ballot, but that
such a test would encourage the young men of the State to
learn to read and write. He hastened to add, however, that he
did not think that it would be wise to apply such a test at
that time or for a number of years. "I would not apply it
to a man who has the right to vote at the present time to save
my right hand," he said.[7]

Two days later, Judge Underwood, in one of his characteristic
speeches, which was very insulting to the Conservatives,
moved that all negroes and women be admitted to the suffrage.

Blue Grass and Cattle Scene

His followers did not approve of woman suffrage, however,
and the motion was defeated. In the course of the debate,
John L. Marye said that the Radicals, instead of teaching the
colored people lessons of thrift, honesty, and dignity, were
encouraging them to entertain vain hopes in politics and were
deluding them into thinking that they could "live without
labor and thrive without effort."[8]

Finally provision was made for enfranchising all negroes
and the attention of the Radicals was centered on the various
measures introduced for disfranchising the whites, who had
been guilty of "complicity with rebellion."[9] As the session
drew to a close, the Radicals grew more insistent upon the
disfranchisement of the whites of the States, and the debates
became, accordingly, more stormy. The majority report of
the Committee on the Elective Franchise and Qualifications
for Office[10] was the chief subject of debate during March and
April. The article, as reported by the committee, and afterwards
adopted by the Convention, disqualified from holding
office and from jury service practically every white man in
the State, and disfranchised several thousand of the most
capable white men. The article was so amended in the Convention
as to carry the disfranchisement even further than
the committee had recommended. At the same time, negroes
were given the right to vote without qualification. Hunnicutt,
fearing that the constitution would be rejected by the electorate
as then constituted, advocated the disfranchisement of
thirty thousand more whites than had already been provided
for in the constitution.[11] More drastic measures were prevented
by the alliance of some of the most conservative
Radicals, who were guided by General Schofield and conservative

Republicans at the North, with the Conservative delegates.
There was also a consciousness in the minds of the more
extreme Radicals that, after all, the whites were a majority in
the State, and that it would be wiser to be prudent.

The Convention came to a close on April 17, 1868. Its
adjournment was made necessary by the refusal of General
Schofield to approve any bill providing for the payment of the
expenses of the Convention after April 6. During its closing
hours the constitution was adopted as a whole by a vote of
51 to 36. A few Radicals, one of them colored, voted with the
Conservatives against its adoption.

By the clauses of the constitution disfranchising all exofficers
of both state and local governments, requiring the
test oath as a qualification for office, and excluding those thus
disfranchised and disqualified from jury service, the destiny
of the State was left in the hands of the densely ignorant
freedmen, who were without experience in government, and
utterly lacking in the traditions of political morality,—a people
who, by their very nature and training, were an easy prey
to unscrupulous demagogues.[12]

On the day of its adjournment, General Schofield appeared
before the Convention and made an earnest plea for the reconsideration
of Article III of the constitution, that referring to
the franchise and to office-holding.[13] He said: "I deem the
question of the oath of office of so vital importance that I
believe it to be my duty to give my views on the subject. It
has been necessary for me, during the past year, to select
registering officers as well as persons to fill the various civil
offices in the State.

"I have been able to find in some counties only one, in
others two, and others three persons of either race able to
read and write who could take the test oath. Most of the local

offices give very small compensation, such that even a laboring
man could not afford to go to another part of the State for the
purpose of accepting them. I have no hesitation in saying that
it will be practically impossible to administer the government
under your constitution and with that provision, and that the
retention of that provision will be fatal to the constitution,
and probably fatal to those who are responsible for the existence
of that objectionable feature. I say this, lest some of you
may be deceived as to the wishes of the people of the country
at large, or those whom you regard as your friends in
Congress. They will not and cannot sustain you in going so
far beyond what is either authorized or required by the acts
of Congress."[14]

After his departure, General Schofield was bitterly attacked
by Bayne, Lindsay, and others for his advice, and no
heed was taken of his counsel.

In a letter to General Grant, written the next day, April
18, 1868, General Schofield described the work of the Convention
and expressed the belief that no satisfactory Union party
could be organized upon the basis of the present Radical party
and its constitution in the State, and advised that the constitution
be allowed to "fall and die where it is—not to submit
it to the people at all;" that a provisional government be
organized; and that, after the government had been formed
upon a loyal basis, another convention be called to draw up
a constitution "fit to be ratified by the people of the State and
approved by Congress and the country at large." It was his
opinion that the negroes and their associates would insist upon
the unqualified indorsement of the constitution and this, he
said, "the respectable whites will not give." General Schofield
also expressed his fear that the "late convention will be reproduced
in the legislature, a large majority being either worthless
Radicals, white and black, or bitter opponents of reconstruction
upon the Congressional plan. The danger is that we
will have on our hands, not only one big elephant in the constitution,

but a host of little ones in the shape of officers-elect
who are not fit to be installed—a prospect not very encouraging,
at least." In a paragraph of this letter, General
Schofield showed the spirit and purpose of the Radicals of the
Convention as follows:

"The same baneful influence that secured the election of a
majority of ignorant blacks, and equally ignorant or unprincipled
whites, to the Convention, has proved sufficient to hold
them firmly to their original purpose. They could only hope
to obtain office by disqualifying everybody in the State who is
capable of discharging official duties, and all else to them was
of comparatively slight importance. Even the question
whether their constitution will be ratified or rejected, they
treat with indifference. Congress, they say, will make it all
right anyway."[15]

If the Republican Federal officer in command of the
District was so completely discouraged and disgusted with
the progress of Reconstruction in Virginia under the Congressional
plan, one need scarcely marvel that the respectable
white population of the State (now District No. 1) were opponents
of the system of reconstruction that threatened the
very existence of their civilization.

During the final debate on the constitution, several of the
most able and far seeing Radicals opposed its adoption. Most
prominent of these were Judge Snead, Dr. Eastham, and
Edgar Allen. They warned the Radicals, especially the colored
delegates, that extreme measures against the white
people of the State would only mean a reaction that would
be disastrous to those that employed them. The following
extract from one of these speeches by Edgar Allen, who was
born in England, had been for many years a resident of the
North, and owed his seat in the Convention to the negroes of
Prince Edward County, shows how outside influence was
brought to bear on the Convention throughout its session and

the fruitlessness of that influence in affecting the legislation
of that body:

"Ignoring the plan set down for our guidance, a majority
of the members of the Convention have drafted a clause which
never can and never will be indorsed by the vote of any man
who has the least feeling of regard for the honor of his
native state; a clause which not only fixes the degradation of
those men who bravely fought for what they believed to be
their birthright, but which also seals the doom of every colored
man in this Commonwealth. I warn you—I mean you
colored men * * * that if the constitution now about to be
submitted to you should ever chance to be adopted, the only
boon you secure to yourselves is to have the power for a few
short years of rewarding men who are only ambitious to receive
your gifts; and the only legacy you will leave to your
children will be the hatred of every white man among whom
they live. Again and again, I warn you. Don't be misled by
a set of men who, instead of working for your good, have
endeavored to frame a constitution for Virginia which will
simply make her a great rendezvous for adventurous foreigners,
to come here and live upon the fat of the land, with
no other attachment to you or your state than the love of
office and the per diem."[16]

By excluding the only element in the State competent to
fill the offices, the proposed constitution secured the state and
local offices for the Radicals. But this was not all. It purposed
to increase further the power of the Radicals by doubling the
number of offices, by decentralizing the state government, and
by having the local officers chosen by popular vote. In this
way, the forty-three black counties, the most populous of the
State, would be under the control of negro office-holders and
their carpetbag allies. The legislature would be a repetition
of the convention. These numerous officers were to be elected
under a township system which was copied from that of New

Scene in Petersburg

England, and which was entirely unsuited to the sparsely settled
counties of Virginia. The number of officers in each county
was increased from about twenty to not less than forty-eight—
all elected by popular vote. Most of the principal state officers
were to be elected by the legislature, which, in turn, as General
Schofield suggested, might greatly resemble the Convention.
The election, tenure of office, and salary of judges, were placed
in the hands of the legislature. Although these were the most
objectionable features of the constitution, there were many
others that were not welcomed by the people. The new system
of government was more expensive and cumbersome than the
former one. The provision for a system of public free schools
before 1876 to take the place of free schools for the poor under
the "literary fund" system, though it proved a blessing, was
a great financial burden at that time and was not cordially
received by many. Voting by ballot, which was introduced in
the place of the old viva voce method, was considered cowardly
and unmanly, and the secrecy which it encouraged was thought
to be conducive of fraud.

A sufficiently convincing illustration of what would have
taken place had this constitution been adopted in its entirety
is found in a report of November 21, 1869, of General Stoneman
(who had succeeded General Schofield as Commanding
General of District No. 1) to the Adjutant General.[17] As the
result of the Act of Congress of February 8, 1869, requiring
a more stringent oath of those elected to office, there were
many vacancies in state and local offices which were at that
time filled by the Commanding General. According to General
Stoneman's report, of the 5,446 offices in the State, 2,613 were

then vacant. Of the officers already appointed, many had not
accepted, and many others would be unable to take the oath of
office. Only a few native white Virginians could take the oath
because, as General Stoneman said, nearly every one gave
"aid, countenance, counsel, or encouragement to persons engaged
in armed hostility to the Federal government, and once
having engaged in war, probably no portion of the Southern
people, old and young, male and female, were more earnest
in its prosecution." A test oath, therefore, such as that required
by the Underwood Constitution, would have excluded
practically the whole white population from holding office.
After describing the impossibility of securing officers under
the oath imposed by Congress, similar to that imposed by
the Underwood Constitution, General Stoneman ended his report
with this striking comment upon the political outlook for
Virginia under the proposed constitution:

"The offices in the state have not been filled by competent
persons; they certainly cannot be filled when the restrictions
of any one party are to be observed and complied with, as
will be the case upon the adoption of the proposed constitution,
under which it is desired by some that the people of
Virginia shall be forced to live, and to the requirements of
which they are expected to consent."[18]

The Underwood Convention of 1867-1868 and the constitution
which it advocated, taught the people of the North what
Radicalism meant in Virginia, and made certain the victory
for the Conservatives in the campaign of 1869, which brought
Virginia back into the Union, free from Radical-negro rule.