John Curtiss Underwood

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Underwood as judge of U.S. District Court of Virginia in 1866.

John Curtiss Underwood (March 14, 1809 - December 7, 1873) was a lawyer, Abolitionist politician, and federal judge.

Early and Family Life[edit]

Underwood was born in Litchfield, New York, and graduated from Hamilton College in 1832[1] and was a founding member of Alpha Delta Phi. He traveled to what was then western Virginia after graduation and taught children of the Jackson family in Clarksburg for two years. He then returned to New York to read law and began a private legal practice, which he continued from 1839-1856.

On October 21, 1839, in Fauquier County, Virginia, he married Maria Gloria Jackson, one of his former pupils. who was a granddaughter of Edward B. Jackson (whose brother John G. Jackson and great-nephew John Jay Jackson, Jr. were also federal judges); her cousin (on both sides) Stonewall Jackson became a distinguished Confederate general. The Underwoods farmed in Herkimer County, New York for about a decade (where they had two daughters, one of whom died, and a son, Edward J. Underwood (d.1907)), then moved to Clarke County, Virginia.[2][3]

Politics and Public Service[edit]

Underwood had been a Whig, but as that party was disintegrating, joined the Liberty Party in the 1840s because of his anti-slavery views, and unsuccessfully ran for U.S. Representative and then District Attorney in 1847. He joined the Free Soil Party in 1848 and the following year moved back to Virginia, hoping that successful operation of a dairy farm and cheese making factory in adjoining Clarke and Fauquier Counties would show the superiority of using free rather than slave labor.[4]

When the Republican party was being formed, Underwood became one of its first supporters in Virginia and in 1856 traveled on his own to the party's convention in Philadelphia (that nominated John C. Fremont for President).[5] His vigorous campaign for Fremont, the Republican party and abolitionist views led to death threats, so Underwood temporarily left Virginia for New York in 1857, writing an account of the persecution he faced which the New York Times published.,[6] who survived her husband by a decade, mentioned that their Clarke County property had been searched by the and that

Underwood became Secretary of the Emigrant Aid and Homestead Society (which he incorporated with Massachusetts congressman Eli Thayer) from 1856-1861, and worked to encourage emigration of Republicans and European emigrants to the Ohio Valley counties of Virginia (that would become West Virginia). The little success he had vanished in October 1859 after John Brown's raid on Harper Ferry, after which the Black Horse Cavalry searched and confiscated their Virginia property, as ordered by Virginia Governor Henry Wise, although only Maria and the children lived there (Underwood had only been permitted to return there to settle his affairs after giving his pro-Fremont speech).[7] However, the Wheeling Daily Intelligencer which Underwood supported financially became the most influential Republican paper in any major slaveholding state. In 1860, Underwood was a delegate to the Republican Convention in Chicago that selected Abraham Lincoln as its candidate. He campaigned for Lincoln in border states, and on October 17, 1860 made possibly the only speech in favor of that Republican candidate in Virginia, in Bellton. The New York Tribune published that endorsement speech, which extolled the superiority of free over slave labor, about a week later.[8]


In 1861 Underwood declined an offer to serve as U.S. consul at Callao, Peru (although confirmed by the Senate), but accepted instead the office of fifth auditor in the United States Department of the Treasury, at which he served from 1861 to 1864, under Salmon P. Chase. He thereafter lived in Alexandria, Virginia or Washington, D.C. the rest of his life.

U.S. District Judge[edit]

Given a recess appointment by Abraham Lincoln to a seat vacated by James D. Halyburton and later confirmed by the United States Senate, Underwood served as judge of the United States District Court for the Eastern District of Virginia from March 27, 1863 until confirmed by the Senate on January 25, 1864. When Congress abolished the Eastern District in 1864, Underwood was reassigned to serve as the United States District Judge for the District of Virginia from 1864 to 1871 (when Congress re-created the Western District, and Judge Underwood was assigned to the Eastern District).

In this position, in May 1866, Judge Underwood presided over the grand jury that indicted Jefferson Davis for treason, and later denied him bail because Davis was in the custody of military authorities, although he later allowed northern supporters to post $100,000 bond for Davis and released him from custody in May 1867 (after a long a vituperative speech). Judge Underwood also presided over a grand jury in Norfolk that indicted Robert E. Lee on June 7, 1865, but General Ulysses Grant and the federal government ignored the indictment as contrary to the surrender terms at Appomattox Courthouse. Chief Justice Salmon P. Chase reportedly worried that after Judge Underwood had testified before Congress about being able to pack a jury, he was incapable of conducting a politically sensitive trial(s) of the former Confederate leaders, and other government officials apparently concurred and failed to press the prosecutions.

Early in the American Civil War Judge Underwood affirmed the right of the United States government to confiscate wartime enemy property under the Second Confiscation Act. His strong views on confiscation policy (what some called "retributive justice") put him at odds with the United States Supreme Court by 1869, and generated intense controversy in Virginia.[9] Underwood's court confiscated more Confederate property than any other in the nation, and although Congress had stated its intention that confiscation only punish supporters of the rebellion and not their heirs, Underwood sought to eliminate the slaveholding class.[10] In 1869, the United States Supreme Court ruled in Bigelow v. Forrest,[11] rejecting Judge Underwood's interpretation that the law only required that the confiscation and sale be completed during the lifetime of the former rebel. In 1870, in McVeigh v. United States,[12] the same Supreme Court held that the federal legal proceeding had to prove that the owner supported the rebellion (the judge's declaration that such occurred was not enough) and that the contesting property owner could appear through counsel and a writ, although physically behind rebel lines in Richmond at the time. Then the Virginia Court of Appeals in Underwood v. McVeigh,[13] overturned the transaction in which Maria Underwood (the judge's wife, through attorney Samuel F. Beach) had bought McVeigh's property.

In 1865, Underwood was elected U.S. Senator by the Virginia legislature in session at Alexandria (John S. Carlile having retired), but was not admitted to his seat (nor was his colleague Joseph Segar) as the Senate did not want to set a precedent for allowing premature reentry of Confederate states into the union.[14] Judge Underwood had not resigned from the bench in contemplation of that service, so his judicial tenure continued. Also, although the Virginia House of Delegates requested that he relinquish that commission in February 1866 after testifying against former Confederates before the federal Joint Committee on Reconstruction the previous month, Underwood refused.

Underwood continued his highly critical and public remarks both against former Confederates and their sympathizers (who had regained power in the state), and for African American suffrage. He published a letter that he wrote to Thomas Bayne, a prominent African American politician in Norfolk, in October 1865, in which he endorsed full African American citizenship and suffrage. The previous year he had critized Virginia laws prohibiting African Americans from testifying in court. In December 1866, the Union League of Norfolk petitioned Congress to replace Virginia's military governor Francis H. Pierpont with Underwood.[15]

Underwood Constitutional Convention[edit]

Underwood also served as one of 5 delegates from Henrico County (Richmond, although he did not live in the city or county) and president of the state constitutional convention of 1867–68, the first legislative body in the commonwealth's history to include African-American delegates (20 served). At the convention (held December 3, 1867, through April 17, 1868), Judge Underwood proposed to give the right to vote to both black citizens and women, and advocated that schools be open to all regardless of color. He also dominated the convention, and some were uncomfortable with his conduct as de facto political boss of Virginia, especially his seeming sale of political offices in exchange for political contributions to the local Republican party.[16]

Nonetheless, the convention ultimately did its work and passed what became the first Virginia constitution to grant suffrage to all males older than 21, as well as to establish (and fund) universal public education, and provided for judges to be elected by the General Assembly rather than directly by voters.[17] It also reorganized Virginia's county government to more resemble that of New England townships, with more elected officials and voting by ballot rather than voice.

However, the convention's provision to continue restrictions on voting rights of Confederate veterans proved extremely controversial and General John M. Schofield delayed the constitution's ratification vote fearing the effects of such white disenfranchisement. After negotiations between a Committee of Nine (Virginia political leaders) and influential Congressmen and President Grant, it was separately voted upon and excluded from the eventually adopted state constitution, which was adopted by referendum on July 9, 1869 by a vote of 210,585 to 9,136. This allowed Virginians to abandon the rump constitution of 1864[18] and elect a legislature including African-American delegates by year's end.[19] It also allowed Virginia to once again send congressmen and senators to serve on the federal level. This constitution (which remained in effect for three decades, until disenfranchisement of black voters in 1902) is often referred to as the "Underwood Constitution."[20]

At the Convention, Underwood was almost alone in promoting women's suffrage, and on May 6, 1870, he and Maria were among those helping Richmond resident Anna Whitehead Bodeker organize the short-lived Virginia State Woman Suffrage Association. Maria Underwood received an invitation to the Seneca Falls organizing convention, which occured only a few months after her husband's death.[21]

Final Years[edit]

When Congress re-established the Eastern District in 1871, Judge Underwood was reassigned back to it, and continued as judge there until his unexpected death. He unsuccessfully sought a circuit court position, and one of his supporters noted his successful management of one of the largest bankruptcy dockets in the country.

Judge Underwood continued to promote rights of African Americans through his judicial office, but was again overruled by the Chief Justice Chase (as Circuit Justice) in Cesar Griffin's Case,[22] in which he had freed a black man who was sentenced for assault in Rockbridge County by a local judge who was a former delegate to the Confederate General Assembly. Furthermore, in Robert Stevens v. Richmond, Fredericksburg, and Potomac Railroad, Judge Underwood charged the jury that racial segregation on railroad cars barbaric.[23] President Grant nominated former Confederate and unsuccessful candidate for Virginia governor, Robert William Hughes as his successor, who, unlike Judge Underwood, failed to protect the rights of African Americans in the developing Jim Crow legal culture.

Death and Legacy[edit]

Underwood Family Grave

Judge Underwood died in 1873 of a seizure in Washington, District of Columbia, where he spent the winter months. He is buried in the Congressional Cemetery in Washington, D.C., as are his wife, son Edward, daughter Alice and her husband (Alexander Cameron Hunt, former Territorial Governor of Colorado replaced by President Grant after his inauguration).[24] Harriet Beecher Stowe published a eulogy of Underwood in the Christian Union on January 7, 1874, and the Washington Evening Star on December 8 and Washington New National Era and Citizen on December 18, 1873 also published favorable obituary notices.

However, many Virginia newspapers condemned him and Readjuster leader William Mahone, making their names the most reviled in the state for decades.[25] His wife Maria after her husband's death never again set foot in Virginia, but resided at 1446 Rhode Island Avenue in the District of Columbia during her final years, and attended the Methodist church of Rev. Nailor.[26] The gravestone is inscribed, "Nor ever shall he be in praise by wise and good forsaken Named softly, as the household name of one whom God has taken" and on the reverse "A quiet bed harbored where none can be misled wronged or distrest, and surely here it may be said that such are blest."[sic]

The Constitution which Underwood helped draft and considered his legacy was amended in November 1872 (with its usery clause stricken), and again in 1874 (capitation tax imposed), 1876 (office and electoral qualifications changed), 1882 (capitation tax stricken) and 1894 (criminal trial changes).[27]

The Library of Congress acquired some of his papers in 1919.[28] The Library of Virginia has microfiche of other papers now held by the Huntington Library.[29]


  1. ^ Judges of the United States Courts
  2. ^ Patricia Hickin, "John C. Underwood and the Antislavery Movement in Virginia, 1847-60," The Virginia Magazine of History and Biography, Vol. 73, No. 2 (Apr., 1965), p. 157.
  3. ^
  4. ^
  5. ^ Richard G. Lowe, "The Republican Party in Antebellum Virginia, 1856–1860," Virginia Magazine of History and Biography 81 (1973): 259–279.
  6. ^ "Proscription in Virginia, Letter from John C. Underwood," New York Times, Jan or Feb. 6, 1857
  7. ^ Little Falls Journal and Courier clipping at p. 267 of Vol. II of John C. Underwood papers in the Library of Congress.
  8. ^
  9. ^ Daniel W. Hamilton, "A New Right to Property: Civil War Confiscation in the Reconstruction Supreme Court," Journal of Supreme Court History, Vol. 29, No. 3 (2004), pp. 270-274.
  10. ^
  11. ^ 76 U.S. 339; 9 Wall. 339 (1869)
  12. ^ 78 U.S. 259, 11 Wall 259 (1870)
  13. ^ 23 Gratt. 409, 418, 64 Va. 409, 418
  14. ^ "Musical Chairs (1861–1869)". United States Senate. Retrieved 2009-03-20. 
  15. ^
  16. ^ Journal of the Convention of 1868, p. 288, available at
  17. ^
  18. ^
  19. ^
  20. ^
  21. ^ Underwood file at Library of Congress; also includes correspondence from Elizabeth Cady Stanton.
  22. ^
  23. ^
  24. ^ John Curtiss Underwood at Find a Grave
  25. ^
  26. ^ Little Falls Journal and Courier clipping at p. 267 of Vol. II of John C. Underwood papers in the Library of Congress.
  27. ^ William H. Van Schreeven. The Conventions and Constitutions of Virginia 1776-1966 (Virginia State Library 1967).
  28. ^
  29. ^

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