The Constitution of 1868: Conqueror's Constitution or Constitutional Continuity?

The Constitution of 1868: Conqueror's Constitution or Constitutional Continuity?Author(s): Cal Ledbetter Jr.Source: The Arkansas Historical Quarterly, Vol. 44, No. 1 (Spring, 1985), pp. 16-41Published by: Arkansas Historical AssociationStable URL: http://www.jstor.org/stable/40027723 .Accessed: 18/06/2014 02:28

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The Constitution of 1868:

Conqueror's Constitution or

Constitutional Continuity? By CAL LEDBETTER, JR.*

University of Arkansas at Little Rock, 33rd and University Avenue

Little Rock, Arkansas 72204

\Jn the surface, the Arkansas Constitution of 1868 appears to be a rather alien document produced during a strange and abnormal time in Arkansas history. During the historical period in which the constitution of 1868 was drafted, military government was in effect, many ex-Confed- erates were disfranchised, and people who had lived in Arkansas only a short time had great influence on the public policy of the state. Because of these and other unsettling conditions during Reconstruction, this whole era in Arkansas history has often had a bad historical press with the Arkansas Constitution of 1868 as the chief villain.

The constitution is frequently regarded as a conqueror's constitution

imposed upon Arkansas by outsiders with little understanding of the state or its customs. David Y. Thomas, one of Arkansas's most influential historians certainly subscribed to this school of thought and wrote that the document "was framed in committees controlled by men ignorant of the past history of the State, prejudiced against its social structure, and uninformed on its economic resources.5'1 As the centerpiece of Recon- struction in Arkansas, the constitution came to be the focus for all the ills of Reconstruction, both real and imagined, and to "ex-Confederates it

*The author is dean of the College of Liberal Arts at the University of Arkansas at Little Rock.

1 David Y. Thomas, ed., Arkansas and Its People, A History (4 vols., New York, 1930), I, 145.


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THE CONSTITUTION OF 1868 17

was a symbol of Radical Reconstruction, carpetbaggers, and scalawags."2 In many respects, the Arkansas Constitution of 1868 is very different

from the other four constitutions which have governed Arkansas. It has a strong reform orientation with a positive role for government as well as an overwhelming partisan emphasis, which are missing in other constitutions. The procedure followed at the constitutional convention of 1868 was also unique. Instead of the normal debate about the framework or details of government that would be expected in a constitutional convention, the delegates are strangely silent about such matters and discuss at length only such issues as miscegenation, the powers of their convention, suffrage, whether to adopt the new constitution and go home, and patronage. It may have been that the outnumbered Conservatives, or ex-Confederates, present saw no hope in debating on the floor such essentials of government as the court system, the governor's office, and the powers of the legislature, and simply gave up the fight over the framework of government. They concentrated instead on issues that would be important in the upcoming election in which the proposed constitution would be ratified or rejected. Accordingly, the convention seemed to be more political theatre than dedicated constitution making.

Because of these unusual attributes of the constitution of 1868 and the emotional viewpoints that often cloud perceptions about the Reconstruc- tion period, possibly too much attention in the past has been devoted to what the constitution symbolized and not enough to what it actually said. One purpose of this article will be to look at the content of the constitution itself rather than the process by which it was made and ratified. Another purpose is to see if the constitution should not be considered as part of the normal constitutional tradition of the state rather than a constitutional aberration, even as Reconstruction is now often considered "as being a part of a continuous development of the social and economic forces in the state rather than as a separate and unique period."3 Should the constitution be regarded as a conqueror's constitution or is it more like a normal constitution with abnormal emphases ?

2 Walter Nunn, "The Constitutional Convention of 1874," Arkansas Historical Quar- terly, XXVII (Autumn 1968), 182.

3 George H. Thompson, "Arkansas Reconstruction, 1864-1874" in Janice Wegener, ed.- in-chief, Historical Report of the Secretary of State (3 vols., Little Rock, 1978), I, 89.



18 ARKANSAS HISTORICAL QUARTERLY

Still another purpose is to try and place the constitution within the

appropriate American or national constitutional tradition, and this is

probably best done first because it provides good background for the rest of the article. In the early days of the country, there were actually three constitutional traditions or avenues to follow. One was the Whig tradition of direct popular control and strong support for legislative supremacy, which often clashed with the Federalist constitutional tradition of indirect popular control, balancing groups and interests through separation of powers, and particularly, balancing legislative power with executive power.4 Often overlooked, however, is the third constitutional tradition associated with Alexander Hamilton, and this is clearly where the constitution of 1868 belongs.

The Hamiltonian constitutional tradition was one of centralized

power under executive control. The government should act effectively to protect and encourage commerce; for Hamilton saw "commerce and

positive government as the twin devices for securing the right kind of

republic. . . ."5 The initiatives to develop a sound economy and rational

public policy must come from the executive because "only the executive has the requisite degree of unity that could generate the energy and

rationality . . . necessary for sound public policy."6 The legislature, lacking the unity, energy, and continuity of the executive should only consent or not consent to executive recommendations.

Hamilton's philosophy, sometimes called managerialism, was re-

jected in the presidential election of 1800 but reemerged in the twentieth

century as part of the new discipline of public administration developed in part by Woodrow Wilson, who felt that the founding fathers "would be the first to admit that the only fruit of dividing power has been to make it irresponsible."7 Wilson and the public administration school viewed politics as a matter of rational administration under a single center of authority which had to be the executive. The proposed Arkan-

4 Calvin R. Ledbetter, Jr., "The Constitution of 1836," Arkansas Historical Quarterly, XLI (Autumn 1982), 216-217.

5 Daniel J. Elazar, ed., Republicanism, Representation, and Consent: Views of the Founding Era (New Brunswick, N. J., 1979), 7.

QIbid. 7 Vincent Ostrom, "Can Federalism Make a Difference?" Publius, III (Fall 1973), 200.




sas Constitution of 1917-1918 reflects many of these Hamiltonian and Wilsonian concepts with its strong emphasis on executive control of the

budget.8 Alexander Hamilton would have been delighted with the Arkansas Constitution of 1868, with its encouragement of business and commerce, its positive role for government, and its enormous concentra- tion of power in the office of governor. Judging by the debates at the convention, no one was aware that the Hamiltonian managerial approach was being adopted, but there was awareness of the need for centralized authority to guarantee loyalty, to compensate for the lack of a Republican party organization in the state, and to take military action if necessary. As Governor Powell Clayton said in his inaugural address of July 2, 1868, it is necessary to "march straight forward in the path of

duty, of justice and of right, to the end that the fruits of war may be secured. . . ."

Arkansas had two constitutions within a period of four years and each tended to symbolize the historical period in which it was drafted. The constitution of 1864 was a product of Presidential Reconstruction

(1864-1867), and reflected the philosophy of the Lincoln-Johnson approach to Reconstruction in the South. The constitution of 1868 was drafted during Congressional Reconstruction (1867-1875), and embodied a very different philosophy of Reconstruction. Presidential Re- construction placed the cause of rebellion in disloyal individuals in the southern states. Since Lincoln regarded the Union as indivisible, states could not leave the Union legally, and, therefore, they continued to exist even during the Civil War, although in an abnormal condition. The solution was to get rid of the rebellious individuals, reestablish loyal state governments, and readmit the states rapidly to their normal rela- tions with the Union. Congressional Reconstruction regarded the rebellious southern state governments as illegal and outside the Union, and

consequently, to be treated as conquered territory in a military sense. Before removing military government, readmitting southern states to the Union, and restoring political rights to people who had rebelled, some rigorous requirements would have to be met.

8 Proposed Arkansas Constitution (1918), Art. XVI, Sec. 7.




Presidential Reconstruction in Arkansas probably began with the

capture of Little Rock by Union forces in September 1863. By the end of 1863, delegates had been chosen to draft a new constitution for Arkan- sas. This action was encouraged by the federal military authorities and was done in accordance with President Lincoln's Amnesty Proclamation of December 8, 1863, which offered amnesty to most ex-Confederates and support for state governments organized in the states that had seceded. The constitution which they drafted was basically the Arkansas Constitution of 1836 with changes necessitated by the results of the war to date.

The new constitution was approved overwhelmingly by those eligible to vote. Although making changes dictated by the outcome of the war, such as, abolishing slavery9 and declaring secession null and void,10 it also continued all laws presently in effect unless contrary to the 1864 constitution,11 limited the bearing of arms to free white males,12 and restricted "Voting, holding office, and jury service . . . [to] . . . free white males over 21 years of age."13 Since the 1864 constitution was drafted by white Arkansas loyalists, only four of whom had been in the state less than five years,14 the continuity in attitudes against full political rights for blacks is not surprising. Radical Republicans criticized the constitution of 1864 because it failed to extend the franchise to blacks, but a former Confederate newspaper in the state, the Washington Tele-

graph, commented on July 5, 1865, that the new constitution was "better than the old one. It is amended and improved, retaining all that was

good. It is indeed the work of grave deliberation in time of peace - not the hasty abortion of a time of war."

The restrictive election law of May 31, 1864, which disfranchised most ex-Confederates, was declared unconstitutional in 1865.15 Conse-

*Ar\. Const. (1864), Art. V. 10 Ibid., Preamble. u-lbid., Schedule, Sec. 7. 12/^.,Art.II,Sec.21. 13 John I. Smith, The Courage of a Southern Unionist: A Biography of Isaac Murphy,

Governor of Arkansas, 1864-68 (Little Rock, 1979), 53. 14 Thomas S. Staples, Reconstruction in Arkansas, 1862-1874 (New York, 1923), 28. 15Rison et ah v. Farr, 24 Ark. 160-176 (1865) ; Eugene C. Feistman, "Radical Disfran-

chisement in Arkansas 1867-1868," Arkansas Historical Quarterly, XII (Summer 1953), 128.




quently, the ex-Confederates or Conservatives made almost a clean sweep of the legislature in the 1866 state election. Though these men accepted the results of the war, that is, the death of slavery and secession, they revealed no willingness at all to bestow advanced rights on blacks. Accordingly, they rejected the Fourteenth Amendment, denied black men the right to vote, to bear arms in the militia, or to serve on juries. Neither could whites and blacks intermarry nor could they attend mixed schools. Evincing their southern sympathies, these Conservatives passed a pension law that applied only to ex-Confederates or their widows and dependents and gave a serious if foolish consideration to a resolution offering "a vote of thanks to Jefferson Davis for his services as Confed- erate president."16

What had happened in Arkansas in 1866 was also happening in the other ex-Confederate states despite the victory of the Radical Republi- cans in the national general election in November 1866. A growing tide of resentment in the North was fueled by actions of southern state legislatures controlled by Conservatives, such as, rejection of the Fourteenth Amendment, white rioting against blacks in the South, and a need to

protect blacks and southern unionists from reprisals. This angry move- ment swept the Radicals to two-thirds majorities in both houses of the United States Congress. Whatever hope existed for Presidential Recon- struction was destroyed in the South by Conservative, or ex-Confederate, controlled legislatures acting "as if immune to any consequences of the

Congressional elections,"17 and in the North by enraged Radicals who saw those who had instigated and lost the war being placed again in

positions of power. With the election of Radical majorities in Congress in 1866 and the

passage of the Reconstruction Acts of March 2, March 23, and July 19, 1867,18 Congressional Reconstruction replaced Presidential Reconstruc- tion and severity rather than leniency became the order of the day. Since

Congress had the power to admit or not admit members of that body

16 Paige E. Mulhollan, "Arkansas General Assembly of 1866 and Its Effect on Recon- struction," Arkansas Historical Quarterly, XX (Winter 1961), 334-343.

17 Thompson, "Arkansas Reconstruction, 1864-1874," 98. 18 14 U. S. Statutes at Large (March 2, 1867), 428; 15 U. S. Stat. at L. 2 (March 23,

1867), 2; ibid., (July 19, 1867), 14.




as well as states, this power of recognition was used to exclude any member of Congress elected from the ex-Confederate states (with the exception of Tennessee) even though the governments of these states had been

legally recognized by either President Lincoln or President Johnson. The

power of recognition, both for members and states, added to sufficient

majorities to override presidential vetoes meant that Congress could control Reconstruction efforts, and the transitional period from Presi- dential to Congressional Reconstruction was quick.

Under the Reconstruction Acts of 1867, the South was divided into

military districts, and military government was to remain in effect in each state until a new constitution had been drafted and approved by the voters of the state and accepted by Congress. Voters were to be registered under supervision of the military and the registration process was to include blacks but not the whites who had occupied governmental positions during the Civil War. Even if a constitution had been drafted and

approved by the voters of the state and by Congress, the state would not be legally recognized and military government withdrawn until the first

legislature to meet under the new state constitution ratified the Four- teenth Amendment and the Fourteenth Amendment became part of the United States Constitution.

Major General Edward Otho Cresap Ord, the commanding general of the Fourth Military District that included Arkansas and Mississippi, began registering voters in Arkansas in May 1867 and completed the voter registration rolls on September 26, 1867.19 Many Conservatives were not registered either because they fell in prohibited categories (officeholders who had taken an oath of allegiance to the United States and later engaged in rebellion or who had held executive or judicial office under Confederate state governments) or felt that taking the re-

quired oath to support the Constitution and laws of the United States and to encourage others to do the same was demeaning. In addition, voting registrars had to take the so-called "iron-clad" oath which meant that they had never voluntarily borne arms against the United States and had never given aid and comfort to its enemies. It also meant that the registrars were probably very liberal in interpreting what was a dis-

19 Thompson, Arkansas and Reconstruction (Port Washington, N. Y., 1976), 63.




qualifying executive or judicial office that a person might have held under a Confederate state government.

The disfranchisement of many Conservatives was probably not that important in the final outcome of the election to decide whether a constitutional convention should be held. The Conservatives were split on this matter. Some did not care whether a constitutional convention was called since they preferred to let the Radicals draft their constitution and then vote it down; while others preferred the present military government to possible civil government with black suffrage. Conservatives were still in doubt at this time as to the best policy to counter Con- gressional Reconstruction, and although most opposed the calling of a constitutional convention because "As a choice between two evils they preferred military rule to civil government such as must follow a victory for the radicals/'20 there was no unified strategy pursued by the Con- servatives to defeat the calling of the convention. No party platform against the calling of a convention was drafted "before the election was held, and each group or locality directed its opposition in its own way."21

The election began on the first Tuesday in November and lasted until December 5, 1867. Voters were to cast two ballots, one for or against the convention, and the other for a delegate or delegates to the convention. Seventy-five delegates were to be elected, apportioned on the basis of the

newly completed registration. Since the "system changed from apportionment based on white adult males to apportionment according to registered voters,"22 the delta and southern areas of the state with large black populations gained delegates at the expense of the northwest with its predominately white population.

The election results were as expected with the call for the convention

carrying by a vote of 27,576 in favor and 13,558 against, and with 25,471 of the registered voters not voting.23 It failed to carry in only fourteen counties.24 Violence and irregularity seemed to be at a minimum and

20 Staples, Reconstruction in Arkansas, 174.

21Ibid., 171. 22 Thompson, Arkansas and Reconstruction, 63. 23 Dallas T. Herndon, ed., Centennial History of Arkansas (3 vols., Little Rock, 1922),

I, 692. 24 Debates and Proceedings of the Convention Which Assembled at Little Roc\, Jan-




the Little Rock Evening Republican announced that the Republicans had elected sixty of the seventy-five delegates.25 For the first time in Arkansas and other southern states when constitutional assemblies were being elected, many white southerners either refused to vote or were denied the right to do so. "As a result, those assemblies tended to be markedly more liberal than southern representative bodies had tradi- tionally been."26

The Arkansas Constitutional Convention of 1868 convened in Little Rock on January 7, 1868, and adjourned on February 14, 1868. This

period included thirty full working days, five Sundays, three days in which the convention did not meet so that the committees could work, and, surprisingly enough, one day when the convention did not meet so that the state Democratic party could hold its convention in the same facilities.27 Total cost of the convention is estimated at $187,000.28 The convention quickly elected its officers, adopted the rules of the Arkansas House of Representatives (1860-1861) to govern its proceedings,29 at least temporarily, and created thirty standing committees. The convention, unlike its modern day counterparts, also passed ordinances or laws as well as drafting a constitution. In fact, eight ordinances were passed at the convention, most of which dealt with expenses of the convention or the mechanics for voting, but one designated John G. Price as the

public printer for the state and another placed a county in a particular judicial circuit.30 The Little Rock Arkansas Gazette, upset by the convention and the authority it purported to exercise, editorialized that the convention has been "forced upon the state at the point of the bayonet, and has been created by Congress to register its edicts so that its policy

uary j, 1868, Under the Provisions of the Act of Congress of March 2d, i86y, and the Acts of March 23d and July igth, Supplementary Thereto, to Form a Constitution for the State of Arkansas (Little Rock, 1868) ; cited hereinafter as Convention Journal (1868).

25 Staples, Reconstruction in Arkansas, 179, 26 Paul C. Palmer, "Miscegenation as an Issue in the Arkansas Constitutional Conven-

tion of 1868 ," Arkansas Historical Quarterly, XXIV (Summer 1965), 99. 27 Convention Journal (1868), 361. 28 Staples, Reconstruction in Arkansas, 230. ^Convention Journal (1868), 52. 3O/^.,820,824.




may have the semblance of the sanction of the people."31 The Gazette consistently referred to members of the convention as the "menagerie," a judgment not endorsed by the Little Rock Evening Republican which found the convention to be composed of "intelligent, earnest and prac- tical men and it gives us great pleasure to assure our readers that every member of the convention can read and write. . . ."32

Delegates to the constitutional convention of 1868 were an unusual mixture in terms of race, geographical origin, and ideological affiliation. Of the seventy delegates who participated in the convention,33 sixty-two were white males and eight were black males.34 Using 1860 as the divid-

ing date, fifty of the delegates (forty-five whites and five blacks) had lived in Arkansas prior to the Civil War while twenty (seventeen whites and three blacks) had come to Arkansas during or after the Civil War. To simplify discussion, they will be referred to as either native or outside

depending upon whether they were in Arkansas before or after 1860.

Ideologically, the delegates were classified in three groups.35 One was the Radicals who supported key Republican policies, such as, measures to aid blacks and disfranchise former Confederates. The Radical voting block was usually listed at forty-eight (seventeen outside whites, twenty- three native whites, and eight blacks.36) The second group was the Con- servatives who opposed granting full political and social rights to blacks and wished to restore as much of the pre-war status quo as possible. They usually could count upon the votes of seventeen native whites. The third

group was the nonaligned faction which was pragmatic about issues.

31 Little Rock Arkansas Gazette, January 7, 1868. 32 Little Rock (Ark.) Evening Republican, January 8, 1868. Sometimes called the Little

Rock Republican and often issued concurrently with a morning edition called the Morn- ing Republican.

33 Five delegates were absent and never participated. 34 See Joseph M. St. Hilaire, "The Negro Delegates in the Arkansas Constitutional

Convention of 1868: A Group Profile," Arkansas Historical Quarterly, XXXIII (Spring 1974), 38-69.

35 Delegate classifications are based upon those used by Richard L. Hume, "The Arkansas Constitutional Convention of 1868: A Case Study in the Politics of Reconstruc- tion," Journal of Southern History, XXXIX (May 1973), 183-206.

36 Since the black delegates always voted Radical, the native and outside terminology will be dropped.




Normally, five delegates fell in this category, all of whom were native whites.

The seventeen outside whites (most of whom had been members of the Union army or associated with the Freedmen's Bureau37) along with the eight black delegates composed the core of the Radical support at the convention. Even though this group was influential, since one of its members was president of the convention and nineteen of the thirty standing committees were chaired by group members,38 still the balance of power rested with the twenty-three native whites who were normally classified with the Radical voting bloc but who frequently were pulled in opposite directions. Their basic sympathies lay with the outside Radi- cals because they had been southern Unionists who had suffered during the Civil War, but, on the other hand, their voting when race was an issue could not be taken for granted since they had been raised in Arkan- sas and shared many similar social beliefs with the Conservatives.

Conservative strategy at the convention was two-fold - to split the native whites away from the outside whites on radical questions and to

lay the groundwork for a campaign against ratification by preempting popular issues. Possibly because the Conservatives realized early that they could not win votes in the convention, very few debates occurred on

questions of governmental structure or the details of how the government would operate. A committee report dealing with a proposed article in the new constitution would be introduced on the floor, and made a

special order of business for a particular day. Then when the day arrived, the whole article would be referred without debate to the Committee on the Constitution, its Arrangement and Phraseology. This committee would incorporate the article with some minor drafting changes into the final draft of the constitution which would be submitted to the dele-

gates for a vote in the last few days of the convention. The Conservatives spent their time debating matters such as misceg-

enation, disfranchisement, the powers of the convention, and apportionment, all of which would be prime issues in the ratification campaign. They also hammered at the expenses of the convention, seeking to reduce salaries and the number of employees. The convention was, in a sense,

37 Hume, "The "Arkansas Constitutional Convention of 1868," 199. 38 Ibid., 180.




a dress rehearsal for the campaign to come instead of a genuine debate about the structure and functioning of government. The Conservative

strategy is summarized by one writer who commented:

Conscious of their inability to save the state from radicalism, they directed their energies to securing moderate radicalism. They denied the constitutionality of the convention, pleaded for econ-

omy, declaimed against negro suffrage and its concomitants, and

sought to discredit the character and purpose of the Republicans, especially the more radical ones.39

The first issue of major importance to be discussed at the convention was whether to adopt the constitution of 1864 as the constitution of the state. Despite the fact that it had been identified with treason by the Conservatives during the Civil War, it was now much more appealing since it had been recognized by President Lincoln, did not disfranchise

many whites, and denied the right to vote to blacks. The issue of suffrage was joined by delegate Jesse N. Cypert of White County, a leading Con- servative spokesman, who was willing to accept the end of slavery and

secession, but not full political rights for blacks. Cypert offered to grant to blacks "the same rights enjoyed by the white man under the age of

twenty-one." He would treat them as minors until they had proved themselves deserving of further rights.40

Although the constitution of 1864 was the technical issue, the debate revolved around suffrage for blacks which was denied by that constitu-

tion, and delegate Joseph Brooks of Phillips County, a leading Radical, responded to Cypert's remarks about suffrage by saying "we accept this

issue, frankly, freely, and fully, and will 'fight it out on this line'."41 William H. Grey, a black delegate from Phillips County, also responded to Cypert by commenting that blacks had fought for country and flag and liberty but that "liberty cannot be secured to us without the right of

suffrage."42 An initial move to refer the motion to adopt the constitution of 1864 to the Committee on the Penitentiary was withdrawn and the

39 Staples, Reconstruction in Arkansas, 222. ^Convention Journal (1836), 152. 41 /#


attempt to adopt the constitution of 1864 with its disfranchisement of blacks was defeated badly by a vote of ten in favor and fifty-three against.43 Coming so early in the convention (the ninth day), this was a

sign to the Conservatives of the hopelessness of their cause and the lack of significant opposition to black suffrage at the convention.

Another issue that did a better job of rallying Conservatives was the

question of the power of the constitutional convention. Could it legislate or was it limited only to drafting a constitution and providing for the

necessary expenses of the convention? The Conservatives argued for a strict construction of the mandate of the constitutional convention and were supported by the Arkansas Gazette, which stated that this "mongrel body now in session at the capitol 'sloshes around' generally; now they are legislative, then judicial, and then again executive."44 This issue was lost by a vote of seventeen in favor and forty-seven against,45 but the Conservatives had improved their position somewhat. A similar issue was raised during the final days of the convention with the Conservatives

wanting the convention to adjourn sine die (permanently) and the Radi- cals wanting it to adjourn subject to recall by the president of the convention. The Conservatives lost again by a vote of twenty in favor of sine die

adjournment and forty-six opposed.46 Other issues were discussed and debated at some length, such as, dis-

franchisement, the Freedmen's Bureau, and patronage, but by far the most emotional and most dangerous issue politically for the Radicals was the question of miscegenation. It posed no problem for the Conservatives, but there was some division in Radical or Republican ranks with the native whites wanting black suffrage but having reservations about social

equality. The issue obviously presented an opportunity for Conservatives to divide the native whites from the outside whites and the black bloc. After much debate and many motions, the Radicals seemed to reach a

compromise to the effect that there would be no provision in the constitution prohibiting intermarriage but that the general assembly would be

urged to pass laws forbidding intermarriage between blacks and whites.

^Ibid., 157. 44 Arkansas Gazette, January 22, 1868. ^Convention Journal (1836), 184. 46 Ibid., 395.




John M. Bradley of Bradley County, a convert to the Conservative faction, introduced a measure to require that the constitution forbid

intermarriage.47 Attempts to refer the matter to the Penitentiary Com- mittee (an old favorite), the Boundaries Committee, the Judiciary Com- mittee, and the Committee on the Constitution, its Arrangement and

Phraseology, were either defeated or withdrawn. Despite Bradley's admonition that "if you dodge this question, the Constitution will be voted to naught,"48 a second attempt to refer the issue to the Committee on the Constitution, its Arrangement and Phraseology, was successful by a vote of forty-three to refer and twenty-three opposed.49 The final outcome was no provision in the constitution but a resolution stating that the convention "is utterly opposed to all amalgamation between the white and colored races, whether the same is legitimate or illegitimate. We would therefore recommend that the next General Assembly enact such laws as may effectually govern the same."50 The first portion of the resolution passed unanimously51 while the second portion, dealing with the general assembly, passed by a vote of fifty-six to nine.52 The Radicals

protected themselves by this resolution but the Conservatives still would use the issue against them in the election. The Arkansas Gazette noted that the failure to put a clause in the constitution forbidding intermar-

riage was "a revelation of the fact that the convention, if it did not favor

miscegenation, at least feared to oppose it."53

Adoption of the constitution by the delegates was a foregone con- clusion since the Conservatives had failed to prevail on any major issue. In the final debate, each delegate was given five minutes to explain his vote on the constitution if he wished to do so. Most of the vote explana- tions were statements in general terms of why a particular individual

opposed or favored the constitution, but some sixteen delegates expressed reservations about having a five- instead of a three-judge supreme court, and seven indicated they thought the franchise restrictions were too

^lbid.,363. **lbid.,369. 49 Ibid., 393. ^ Ibid., ^9.

^Ibid.,507. lbid. *z Arkansas Gazette, February 8, 1868.




severe but three thought they were not strict enough. Delegate Miles Ledford Langley of Clark County voted yes but wanted to add an amendment allowing female suffrage since as he said, "I am a consistent man, and wish to make the right of suffrage really universal."54 He was allowed to try, but his attempt was tabled.55

John M. Bradley of Bradley County and Jesse N. Cypert of White

County, the two most effective Conservative leaders, both spoke vigor- ously against adoption. Bradley's statement was: "I ask to bequeath to

my posterity no greater boon, than to record my vote against that damn- able engine of oppression and ruin. I ask my language to be cut in a rock, lead poured into the letters, to stand forever. I vote Nay."56 Cypert, who had been a delegate to the secessionist convention in Arkansas, said: "I have had a little experience in revolutionary movements. Six years ago, I heard just such a clamor, from those galleries, as I heard awhile ago. It shocked me then - it shocks me now."57 On the Radical side, Joseph Brooks of Phillips County, felt that those who opposed the constitution were also "opposed to the great cardinal principle upon which reconstruction, and this Constitution, are based - namely, the equality of all men before the law."58 The Little Rock Evening Republican also commented on those who opposed the constitution and said that they "offer

nothing in its stead but to remain as we now are - without civil law, without peace, and without a prospect or hopes for the future, and in

open hostility to the Federal authorities."59

The first vote on adoption of the constitution was forty-five (includ- ing the president) in favor and twenty-one against.60 This included seventeen outside whites, eight blacks, and twenty-one native whites. The twenty-one against were all native whites. One delegate, Anthony Hinkle of Conway County, asked that his vote be changed from no to

yes. This request was granted except the record was still to show that he

^Convention Journal (1868), 671. m I bid. ,724. Ibid.,661. ^lbid.,6%5. 58 Ibid., 663. 59 Little Rock Evening Republican, February 13, 1868. 60 Convention Journal (1868), 656.




voted no at the time.61 Another delegate was sick at the time of the vote and one other delegate was out of town. Fifteen of the Conservative

delegates refused to sign the document and entered a protest in the convention journal stating that they refused to sign or endorse the constitution because it "is anti-republican, proscriptive, and destructive of the liberties, rights, and privileges, of this State."62

The convention adjourned on February 14, 1868, subject to recall by the president or vice-president within a year in case the constitution was not ratified. If not called back within a year, the convention would

adjourn sine die.63 During the closing ceremonies, the president of the

convention, Thomas M. Bowen from Crawford County, made the fol-

lowing remarks :

The greater portion of the proposed Constitution will be

passed over by its opponents, with but slight comment. But that

part of it in which the Government reaches out its arms and ex- tends equal political rights to all its citizens, will be the most

bitterly declaimed against.64

The new proposed constitution, unlike Arkansas constitutions before or since, put state government in a central role not only to assist business

(railroads) and promote internal improvements with state credit but also to promote social, economic, and political reform. There is a strong reform emphasis in the 1868 constitution, and this is most dramatically illustrated in the provisions dealing with blacks, women, and the poor. There is an equally strong partisan thrust to the 1868 constitution which is more than just the normal advantage that one partisan group tries to take of another. The partisanship shown in the 1868 document was to ensure that the former Confederate leaders did not assume power again and that control of government rest in the hands of people who had been loyal to the Union. Many of the delegates saw loyalty to country as

being involved rather than mere partisan political favoritism. This atti- tude helped to make the constitution of 1868 a strong mixture of pure

6i 1 bid., 752. Ibid.,756. 63 1 bid. ,724, 424. ^ Ibid. ,762.




idealism and petty partisanship. The reform emphasis is found throughout the 1868 constitution. Sec-

tion three of the Bill of Rights recognizes the equality of all persons before the law and provides that no citizen can be deprived of any right "on account of race, color, or previous condition." Black males are en-

franchised,65 there is no imprisonment for debt,66 and it is the duty of the

general assembly to "frame and adopt a penal code, founded on principles of reformation"67 and to make "adequate provision for the main- tenance of paupers throughout the State."68 Article twelve deals with

exemptions and provides for a $2,000 exemption of personal property for

payment of debt and a similar homestead exemption of real property whether located in an urban area or rural area. Article twelve also pro- tects women in their right to own and dispose of property.

Possibly the greatest reform area in the document is that dealing with education. Prior to the 1868 constitution, education in Arkansas was still

regarded as "private, personal, optional, patriarchial, aristocratic, and

religious,"69 and free public schools were almost nonexistent. The re- versal of this situation is dramatic and the state is mandated to maintain a system of free schools for persons between the ages of five and twenty- one,70 as well as a state university.71 A public school fund is created and no school district can draw from this fund unless schools are operated for at least three months in a year.72 Males in the state over the age of

twenty-one are assessed one dollar annually for support of the public schools,73 and if there are insufficient funds to provide for at least three months of school annually in each school district, the general assembly shall make up the deficit by levying a tax "upon all taxable property in each County, Township, or School District as may be deemed proper."74

65 Ar\. Const. (1868), Art. VIII, Sec. 2. 66 Ibid., Art. 1, Sec. 14. lbid., Art. V, Sec. 29. 68/&J.,Art.V,Sec.46. 69Orval Truman Diggs, "The Issues of the Powell Clayton Regime, 1868-1871," Arkan-

sas Historical Quarterly, VIII (Spring 1949), 40. 70 Ar\. Const. (1868), Art. IX, Sec. 1. i1 Ibid., Sec. 3. *2I bid., Sec 6. 73 Ibid., Sec. 4.

lbid.,Stc.7.




The shift from almost complete state indifference toward free public schools to an active supervisory role is remarkable.

The partisan thrust of the 1868 constitution is also remarkable. The state was divided into twenty-two legislative districts based upon the

registration of voters for the constitutional convention. This registration had excluded many ex-Confederates, and the legislative districts tended to underrepresent the heavily white counties in the northwest and over-

represent the southeast with its large concentrations of black voters. The districts could not be changed until 1876.75 All township and

precinct offices were to be vacated within thirty days after the adoption of the constitution, and the governor was to appoint such officers, whose terms of office would continue until the legislature should provide by law for the election of such officers.76 To amend the constitution required approval by a majority vote in each chamber in two consecutive sessions of the general assembly, followed by referral to the people "in such manner and at such time as the General Assembly shall provide. Ratifi- cation required a majority vote of the electors qualified to vote for members of the general assembly, and voting on the amendment.77 Perhaps the ultimate in partisanship was found in the schedule, which one Arkansas historian described as the "Crowning iniquity of the convention's work."78 Section four in the schedule set up a board of commissioners composed of three outspoken Radical delegates to the constitutional convention to supervise the elections for state offices and the ratification of the constitution. They were given the power to certify returns and appoint election judges and clerks.

To further insure partisan advantage and to make certain that the state was controlled by loyal Union supporters who had been faithful to the United States, the franchise was restricted. Those prohibited from

voting included all who had sworn an oath of allegiance to the United States and then participated in the rebellion; those disqualified by other

states, by the Fourteenth Amendment, and by the Reconstruction acts; and those who had violated the rules of civilized warfare.79 More im-

/#


portant than these restrictions was the oath required of prospective voters who had to swear that they supported the constitution and laws of the United States; were not excluded from voting by any of the provisions already mentioned; would never aid in any secession of a state from the

Union; accepted the civil and political equality of all men; would not

attempt to deprive any person of any political or civil rights because of race or color; and would not personally injure or encourage others to

injure any person "on account of past or present support of the government of the United States, the laws of the United States, or the principle of the political and civil equality of all men, or for affiliation with any political party."80 Assuming that they were eligible otherwise, many ex-Confederates undoubtedly found the oath too demeaning to take.

Another way to assure loyalty and Radical control and to compensate for the lack of a Republican party organization in the state was an enormous increase in the powers of the office of governor. The governor could appoint, with the advice and consent of the Arkansas senate, all

notary publics, the chief justice of the Arkansas Supreme Court, all

judges of inferior courts, prosecuting attorneys, tax assessors,81 and, as

already noted, township and precinct officers who had to vacate their offices within thirty days of the adoption of the constitution. The gover- nor was also given a pocket veto over legislation82 and was authorized to

appoint the commissioner of public works and improvements, who was also to be the ex officio commissioner of immigration and of state lands.83 Most importantly, the governor could control the courts and make sure that Arkansas loyalists would find them more congenial than in the past

Wholly aside from the reform or partisan orientation, the constitution of 1868 contained many flexible features that would be admired by constitutional reformers today. State constitutional officers had four-year terms,84 and their salaries were set by law.85 The legislature had the

*olbid.,Scc5. 81Ibid., Art. VI, Sec. 16; Art. VII, Sec. 3, 5; Art. XV, Sec. 6; Appointment of tax

assessors authorized by the 1868 legislature. 82 Ibid., Art. V, Sec. 35. */#


power to create inferior courts by law,86 could meet in annual sessions if desired with no specified number of days set for a particular session,87 and its members' salaries were also set by law.88 Although there were some restraints on the taxing power of cities,89 taxing was simple and uniform since real estate was to be assessed every five years "at its true value in money"90 and the general assembly was to provide "revenues sufficient to defray the expenses of the State, for each year."91 There was one puzzling tax provision, however, that must have worried people in certain occupations. It provided that the general assembly "shall tax all

privileges, pursuits and occupations, that are of no real use to society; all others shall be exempt. . . ."92

The most far reaching change in the 1868 document was the role to be played by the state government whether stimulating commerce and business, financing internal improvements, overseeing political and social reform, creating a system of public education, encouraging immigration into the state to make up population losses caused by the Civil War, or

staffing and financing the new offices established to carry out these new functions.

There were rumors at the constitutional convention of 1868 that the

proceedings were a sham since the constitution had already been drafted

by the Radical Republicans in Washington, D. C. and sent down to the state convention for approval and adoption. Delegate William F. Hicks from Prairie County exemplified this sentiment when he gave as his reasons for voting against the constitution "that it was concocted in secret, and brought forth between two days"*s Reconstruction constitutions in such states as Texas, Tennessee, and Mississippi, all states that border Arkansas and from which many Arkansans came, show some

similarities, particularly in emphasis, but not enough identity in content and detail to prove the case for a model constitution drafted in Washing-

86/i


ton by Radical Republicans and sent to the conquered states for copying. There are similarities, however, among the Reconstruction constitu-

tions of the four former Confederate states. Like Arkansas, Texas and Tennessee and Mississippi had strong provisions regarding public education.94 All three had sections dealing with the poor and less fortunate;95 Texas and Mississippi both had commissioners of immigration96 and

legal protection for women,97 and, in addition, Mississippi had a thirty- day requirement within which township and precinct officials had to vacate their offices,98 a voting oath similar but not as tough as the one found in the Arkansas 1868 constitution,99 and a committee to supervise the election on the constitution to consist of five people appointed by the constitutional convention.100

There was an overriding concern to protect all four constitutions from change except when there were extraordinary majorities in the

legislature and among the public that lasted for long periods of time. These were constitutions drafted by people loyal to the United States and they were not to be altered easily. The exact amending process was different in each state but it was always difficult and time consuming.

In Texas, a constitutional amendment was proposed by a two-thirds vote of both houses in one session of the legislature. If successfully proposed, it was then submitted to the people who had to pass it at a general election with a majority voting on the amendment being enough. If

passed by the people, it was then referred back to the legislature which had to pass it another time by a two-thirds vote.101 In Mississippi, if a constitutional amendment was adopted by a two-thirds vote of the legislature, it was then referred to the people who had to pass it not by a

majority voting on the issue but, as in Arkansas, by a majority of the

MTexas Const. (1868), Art. IX; Mississippi Const. (1868), Art. VIII; Tennessee Const.

(1870), Art. XI, Sec. 12. **Texas Const. (1868), Art. XII, Sec. 15, 26; Miss. Const. (1868), Art. XIII, Sec. 24, 27,

28, 29; Tenn. Const. (1870), Art. XI, Sec. 11. Q6Texas Const. (1868), Art. XI; Miss. Const. (1868), Art. XII, Sec. 23. 97 Texas Const. (1868), Art. XII, Sec. 14; Miss. Const. (1868), Art. I, Sec. 16. *8Miss. Const. (1868), Art. XII, Sec. 6. "Ibid., Art. VII, Sec. 3. ioo/^., Art. XIII, Sec. 7. 101 Texas Const. (1868), Art. XII, Sec. 50.




voters qualified to vote for members of the legislature.102 In Tennessee, the amendment had to be passed in one session by a majority vote of the elected members of the legislature, then by a two-thirds vote of the elected members of the legislature in the next session, and then submitted to the people who had to approve it by at least the same majority who had voted for members of the state house of representatives. In addition, the legislature could not propose amendments to the constitution more than once in every six years.103

On the other hand, with the exception of Mississippi, suffrage was not as restricted as in Arkansas, and no voter oath approached that of Arkansas. Legislative apportionment could be changed quicker in the other three states, and none of the three states used for comparison purposes had a governor's office as powerful as that of Arkansas. The pattern among the four states seems to be one of common concerns and emphases but with enough detail and established state constitutional tradition to negate any idea of a constitution handed down from on high to be meticulously followed.

As the election on the constitution approached, the document was attacked by Conservatives and Democrats as a punitive partisan instru- ment which broke radically with the past and had been drafted by outsiders who knew little of Arkansas traditions and customs. It was de- fended with equal vigor by those who stressed the need to bring Arkansas back into the Union under a constitution that embodied some of the principles for which the Civil War had been fought. As the election became more heated, a middle position between the two camps was hard to find, but one Arkansas historian came close when commenting on the document that "Though carrying many evidences of partisan design the constitution as submitted to the electorate was not as radical as the Conservatives pronounced it."104

Nevertheless, such moderate judgments were hard to find in the ratification campaign when the two opposing groups were separated by such pronounced ideological differences. While the Republicans urged

102 Miss. Const. (1868), Art. XIII, Mode of revising the constitution. 103 Tenn. Const. (1870), Art. XI, Sec. 3. 104 Staples, Reconstruction in Arkansas, 241.




support for the policies of Congressional Reconstruction, the Conserva- tives and/or Democrats viewed these policies as unconstitutional, the 1868 constitution as illegal, and military rule in preference to civilian

government under the proposed constitution. The Conservatives still wanted admission to the Union under the 1864 constitution, and to dramatize their contention that the new 1868 constitution was illegal, they boycotted the elections for state and congressional offices which were being held at the same time. The Republicans seemed to emphasize the issues of free public schools, homestead and personal property exemptions, and voting rights for blacks. The Democrats countered with

allegations that the free public schools would be paid for by taxation on

property, that blacks and whites would be forced to attend the same schools, that unnecessary offices were being created, that thousands of

respectable white men were disfranchised, and that legislative apportionment and white disfranchisement would put the state under Radical control for years to come.

According to the schedule of the 1868 constitution, the ratification election was to begin on March 13, 1868 (one month after adjournment) and last as long as necessary.105 Two polls were used for the election, one of which was created by the schedule and controlled by the three commissioners selected by the members of the constitutional convention. At this poll, usually called the civil poll, state and congressional offices were to be filled, and, at least theoretically, the constitution was also to be

approved or rejected. Election commissioners were appointed by the three commissioners from the constitutional convention and all voters, who were not otherwise disfranchised, had to swear the oath found in the 1868 constitution containing provisions that many Conservatives found insulting.106

The military authorities refused to recognize the authority of the constitutional convention to hold a ratification election and also refused to assume any responsibility for the election of state and congressional offices. The military, consequently, set up a separate poll, called the

military poll, for the ratification election, with registration officials

picked by the military and the voting requirement the same as for the

^Ar\. Const. (1868), Schedule, Sec. 1. 106 Ark, Const. (1868), Art. VIII, Sec. 5.




selection of delegates to the constitutional convention. The result was two sets of polls, the civil poll, boycotted by the Democrats, at which

only Republicans voted and whose authority extended only to the election of state and congressional officers, and the military poll where voting was not as restricted and where both Republicans and Democrats voted for or against the proposed constitution.

The election extended over a period of two weeks, and even though supervised by the military, there apparently was widespread fraud and misconduct as Democrats intimidated blacks, Republicans successfully challenged many registered whites, and both sides engaged in multiple voting.107 Despite protests of the Democrats and an investigation of the election by the military authorities, the constitution was declared adopted on April 22, 1865, by a margin of 1,316 out of 54,510 votes cast.108 It failed to pass in thirty-seven of the state's fifty-eight counties and most of the

flagrant irregularities occurred in the counties favoring ratification.109 The Arkansas Constitution of 1868 did not survive long. Internal

bickering within the state Republican party led one faction to begin courting Democrats and advocating amnesty and universal male suf-

frage. The final result was that Governor Powell Clayton, the Republi- can governor of the state, asked the 1871 legislature to pass a constitutional amendment to restore the ballot to the ex-Confederates who still could not vote.110 This was done and passed a second time in the 1873

legislature and then submitted to the people for a vote as required by the 1868 constitution. The constitutional amendment restoring the right to vote to all ex-Confederates was passed by the people on March 3, 1873, and that action guaranteed that the constitution of 1868, like the constitutions of 1861 and 1864, would quickly pass from the scene. It was re-

placed by the Arkansas Constitution of 1874 which was adopted over-

whelmingly by the people on October 13, 1874.

It is relatively easy to place the constitution of 1868 within its Ameri- can constitutional tradition. As has been discussed earlier, it fits nicely

107 Thomas, Arkansas and Its People, I, 148. 108 Convention Journal (1868), 807.

109Feistman, "Radical Disfranchisement in Arkansas," 153-154.

110Diggs, "The Issues of the Powell Clayton Regime," 63.




within the Hamiltonian constitutional tradition of centralized power under executive control with the executive acting as catalyst for sound

public policy. It is sometimes called managerialism and is found in Arkansas not only in the 1868 constitution but also in the proposed 1917-1918 constitution. It is interesting to note that Arkansas within a

period of less than ten years moved from constitutions (1836, 1861, 1864)

m embodying the Federalist constitutional tradition of indirect

popular control with a balancing not only of groups and interests but of

legislative power with executive power, to a managerial constitution in

1868, and then back to the Whig constitutional tradition found in the 1874 constitution with its emphasis on direct popular control and preference for legislative rather than executive power.

Placing the constitution of 1868 within Arkansas's constitutional tradition is not so easy. It is a very different kind of constitution with its

emphasis on reform, loyalty to a cause, and the positive role of government to carry out economic and social change as well as financing internal improvements and promoting business and industry. On this

point, the role of government, the difference between the 1868 and the 1874 constitutions is almost irreconcilable, since the 1874 "Rather than

viewing a constitution as a document to enable the government to

operate effectively and responsibly, the citizens emerging from Recon- struction looked upon it as a means of protection from their own government."112 These differences, however, should not be allowed to blot out the continuity on fundamentals that the 1868 constitution shared with

prior constitutions, the 1874 constitution, and future constitutional at-

tempts in the state. There is a vast area of agreement on the three branches of government, separation of powers, Bill of Rights (freedom of speech, religion, jury trial, due process, etc.), property protections and

guarantees, popular elections, majority rule, and a host of other items that are related both to the structure and detail of government. It is hard to call a constitution that contains these rights and guarantees a "con-

queror's constitution," particularly when fifty of the seventy active dele-

gates who drafted the constitution had lived in Arkansas prior to the

111 For comparison purposes, the 1861 and 1864 constitutions are regarded as virtually identical with the 1836 document.

112Nunn, "The Constitutional Convention of 1874," 201.




Civil War. Even some of the differences are not that startling. Although the

office of governor is extremely powerful in the 1868 constitution, it was also unusually powerful in 1836.113 It should also be noted that even in the 1868 constitution, the governor's power to appoint township and precinct officers,114 prosecuting attorneys,115 and the office of commissioner of public works and internal improvements (also ex officio commissioner of immigration and state lands)116 could be revoked by the general assembly. Although the office of governor with its extensive powers is sometimes regarded as the most significant feature of the 1868 constitution, it is still not that far removed from the same office in the 1836 constitution which set the precedent in Arkansas for a governor with strong powers.

The emphasis in 1868 on reform is not really that unusual since the state has experienced other reform movements ranging from the Popu- lists and Progressives to the Rockefeller era, and at least two constitutional attempts came out of reform eras.117 There was also a limit to reform in 1868. Miscegenation was not seriously challenged with the convention going on record that it was unanimously "opposed to all

amalgamation between the white and colored races, whether the same is legitimate or illegitimate."118 This left "the most fundamental of all southern prejudices ... as secure from assault as it had ever been."119

The Arkansas Constitution of 1868 was not the constitutional process run wild, but rather a constitution with ties to the past and well within the Arkansas constitutional tradition. It was a constitution that took a different approach in an unusual time but had much in it that would be found in both the past and future constitutions of the state.

113Ledbetter, 'The Constitution of 1836," 246-248. 114 Ar\. Const. (1868), Art. XV, Sec. 5. 115 Ibid., Sec. 6. lbid., Art. VI, Sec. 23. 117 Proposed Arkansas Constitution (1918); Proposed Arkansas Constitution (1970). ^Convention Journal (1868), 507. 119 Palmer, "Miscegenation as an Issue in the Arkansas Constitutional Convention of

1868," 119.



Article Contentsp. [16]p. 17p. 18p. 19p. 20p. 21p. 22p. 23p. 24p. 25p. 26p. 27p. 28p. 29p. 30p. 31p. 32p. 33p. 34p. 35p. 36p. 37p. 38p. 39p. 40p. 41

Issue Table of ContentsThe Arkansas Historical Quarterly, Vol. 44, No. 1 (Spring, 1985), pp. 1-100Front Matter"All the Songs in the World": The Story of Emma Dusenbury [pp. 3-15]The Constitution of 1868: Conqueror's Constitution or Constitutional Continuity? [pp. 16-41]A German Prisoner of War in the South: The Memoir of Edwin Pelz [pp. 42-55]Confiscation and the Northern War Effort: The Army of the Southwest at Helena [pp. 56-75]Arkansas Listings in the National Register [pp. 76-78]Book ReviewsReview: untitled [pp. 79-81]Review: untitled [pp. 81-82]Review: untitled [pp. 83-84]

Book Notes [pp. 85-89]News, Notes, and Comments [pp. 90-98]Back Matter

Documents

The Constitution of 1868: Conqueror's Constitution or Constitutional Continuity?