A 1929 sketch of Underwood by Edward V. Valentine Photo courtesy Valentine Richmond History Center
The atmosphere surrounding the Virginia constitutional convention seated on Dec. 3, 1867, resembled the circus some critics claimed it was. In Capitol Square, vendors hawked lemonade, whiskey and peanuts. Curious Richmonders streamed toward the Capitol to witness the historic meeting that included African-American delegates — and an assortment of transplanted Northerners. The pejorative used by city papers was the "Black and Tan Convention."
Congress' Reconstruction Acts called for new constitutions in former Confederate states before they could rejoin the Union and federal troops would be moved out. Fear of social integration and black suffrage became the common ground for factions of Virginians who normally had political differences; the groups congealed to form the statewide Conservative Party.
Its platform admitted that slavery and secession were over, though whites needed to retain control of the state; the party called for immediate readmission to the Union without restrictions on former Confederates.
The Conservatives wouldn't make the task of redesigning the Virginia constitution less arduous, nor could they completely halt its passage if they wanted Virginia's members of Congress to be seated. Cantankerousness was their only option.
The document that emerged from this unusual convention would be called "The Underwood Constitution," because of its chair, the federal judge and Radical Republican John Curtiss Underwood. He wanted the document to include universal suffrage for white and black men — and white women.
Raised by devout Presbyterian parents in Herkimer, N.Y., he became a progressive lawyer determined to oppose slavery. In 1839, he married Maria Gloria Jackson, once Underwood's student and a cousin of Thomas J. Jackson, who later earned the sobriquet of "Stonewall."
Around their Clarke County home (then Virginia, now West Virginia), he established free-labor dairies. The businesses worked without slaves, but the cheese didn't keep well. Just as sour to the locals was the abolitionist enthusiasm of the men brought from Herkimer to manage the dairies. Word of Underwood's remarks at the 1856 Republican convention condemning Virginia slavery got home before he did.
His wife told him not to return because she feared for his safety. In New York, while writing abolitionist letters and editorials, his neighbors complained that Underwood had "broken the rules of Virginia." Underwood didn't understand, as freedom of speech was one of Virginia's oldest rules. Even William Lloyd Garrison told Underwood to give up on the state.
Undeterred, he tried to found a free-labor "colony" in western Virginia, called Ceredo, now a suburb of Huntington, W.Va. It prospered after a fashion, but John Brown's 1859 Harper's Ferry raid ended the experiment.
In 1863, Underwood was awarded a federal judgeship. After the war, he advocated the arrest and trial of both Confederate President Jefferson Davis and Gen. Robert E. Lee, and he zealously upheld the expropriation of former Confederate-owned properties. In 1865, he was elected to represent Virginia in the U.S. Senate, but he was never seated. He nonetheless used Senate mailing privileges until Virginia Conservatives "exposed the thrifty Judge's little vice," as historian Richard Lowe describes it.
In his Republicans and Reconstruction in Virginia, 1856-70 Lowe notes that "former Confederates and their sympathizers found the sayings and doings of black delegates especially amusing." Of the 24 blacks in the convention, possibly more than 11 were free or had escaped bondage before the war. Several had received a solid education, but they were in the minority. After all, slavery didn't encourage higher learning.
Proceedings unfolded in fair order, however, despite what Lowe describes as near fistfights and chair-smashing, shouting matches, and parliamentary procedure lost among "motions, countermotions, amendments and points of order."
The Conservatives, who claimed they knew governing best, expressed their own confusion amid the tumultuous debates.
The greatest disturbance came when the Radicals invited former Union general and prominent Massachusetts politician Benjamin F. Butler to speak before the convention. Southerners referred to him as "The Beast," for his military command of New Orleans, or "Spoons," for the allegation that he stole household silver. Butler wanted to support amnesty for former Confederates, but the Conservatives didn't want to hear anything Butler had to say — even if he agreed with them. Instead of listening, they walked out.
Another general came on the session's last day, April 17, 1868 — Virginia's military commander Maj. Gen. John M. Schofield. He tried persuading the delegates to suspend the "Test Oath" qualification for office holding. That is, former Confederates needed to renounce their participation and swear to uphold the new constitution.
In some counties, only two or three men were both literate and eligible under the test oath. Schofield felt that the test oath would render Virginia almost ungovernable. He privately disagreed, too, with the disenfranchisement of Confederates, among others clauses in the proposed constitution. At best, he felt the test oath should be submitted separately in a referendum thus allowing Virginians to adopt the document but reject the offensive clauses.
In the end, the convention held its collective nose and voted for the document. The "Underwood Constitution" turned out fairly well, all things considered, and in fact, it was the most sweeping democratic document in Virginia history. For the first time, white and black men could vote — except for those disenfranchised (especially women). The constitution established a public-education system, redistributed taxes more suitably through the economic strata, made illegal any discrimination in the selection of juries, assured debtors of their safety in times of economic reversals and increased the number of elective offices.
Most of what the Conservatives blustered about didn't occur.
But the Richmond Dispatch editorial page thundered that universal manhood suffrage was "a monstrous measure which takes the Government out of the hands of the educated, refined and responsible portion of society and places it under direction of the illiterate … [who] so lately in a state of slavery, led and excited by men little more refined and barely better informed than themselves, cannot long prevail."
Yet, historian Raymond Pulley wrote, "The Underwood Constitution became the symbol of all that was distasteful in the Radical effort. … It was looked upon as a work of foreign, unfriendly hands and as an evil to be suffered only until it could [be] altered to suit the values of native leadership."
On July 6, 1869, an amended Underwood Constitution was approved, moderate Republican Gilbert C. Walker was elected governor and Conservatives carried the state legislature. The Norfolk Journal declared that Virginia was "redeemed, regenerated and disenthralled."
The state, like most throughout the South, was instead poised to start a terrible journey into an American-style apartheid. Underwood served on the federal Eastern District bench until his death in 1873.
