Our Constitutions (Part 1)

Old State House Museum - Monday, October 21, 2019

During the 75 years that the Old State House served as the seat of government in Arkansas, the people were governed under five constitutions: adopted in 1836, 1861, 1864, 1868 and the current one, adopted in 1874. All were adopted and lived out their existences in various degrees of controversy. All but one were devoted to the basic principle that government was best when it governed least. These documents truly became a reflection of the apathy of the populace as a whole. Further, this attitude had its roots in the long-held individualism of the hill country of Northwest Arkansas, which saw government as what political scientist Diane Blair called “an inconsequential nuisance.”They also reflected a basic desire of Arkansans to be as far aloof from government and its obligations as possible. For more than a century, these constitutions aided the people in that desire.

Territorial Governor William FultonBefore the 1830s, national political leaders did not see Arkansas as a candidate for statehood, nor, for that matter, did many of its citizens. Yet Congress’s passage of the Missouri Compromise changed all that. Because of the delicate balance between free and slave states, the compromise dictated that free and slave sates should come into the Union in pairs. By 1835, Arkansas was close to the 40,000 population required for statehood, and Michigan was eager to join, too. Michigan had held a convention that year, adopted a constitution and sent it to Congress without the national lawmaking body approving a convention first. Arkansas, over the objections of Territorial Governor William Fulton, appeared ready to go the same illegal route.

Slavery inevitably entered into the constitutional convention’s deliberations as the north and west wanted it based on white manhood suffrage, while the south and east wanted a three-fifths clause for counting slaves as population as was originally contained in the U.S. Constitution. In the end, the lower house of the legislature would be based on white population, while in the Senate both regions would be equally represented with a district comprising Pulaski, White and Saline Counties holding the balance of power.

The adoption of Arkansas’s first constitution came during the age known as “Jacksonian Democracy,” when democratic rights and liberties were expanding nationwide. Arkansas’s first governing document appeared to go in the other direction in some ways. The governor was elected for a four-year term, and could not serve more than eight years out of 12; House members were elected for two-year terms and the Senate for four; while the legislature chose the secretary of state, attorney general, auditor, treasurer, Supreme Court and all lower court judges; and all prosecuting attorneys. Another provision of the constitution, which the state’s leaders and citizens would live to regret, authorized state-backed banks. It also banned lotteries, required officeholders to acknowledge the existence of God, encouraged “intellectual, scientific, and agricultural improvement, by allowing rewards and immunities for the promotion and improvement of arts, science, commerce, manufactures and natural history; and countenance and encourage the principles of humanity, industry and morality” and created a state militia. However, in keeping with the growing movement toward democracy, property qualifications for voting were banned. On the slavery question, the legislature was prohibited from emancipating slaves without the permission of their owners, but was permitted to ban the slave trade within the state. In stark contrast to other slaveholding states, masters were legally required to treat slaves “with humanity” and slaves accused of committing crimes were entitled to proper trials with impartial juries, and subject to the same penalties as whites.

No referendum was held to ratify the constitution, as the prior approval of the convention was considered sufficient by the territorial legislature. When it came time to present the constitution to the U.S. Congress, the delegates selected Charles F.M. Noland to convey the document to Washington, although one delegate from Carroll County nominated “U.S. Mail” and persisted for seven ballots. While Noland took a southern route as a means of safety against winter storms, a copy contained in an “extra” edition of the Arkansas Gazette was sent by mail. It arrived in Washington before he did.

Future President and Pennsylvania Senator James Buchanan handled the Arkansas statehood bill while Missouri Senator Thomas Hart Benton handled the Michigan bill to give both a cross-sectional flavor. However, this ploy did not quiet objections to either the Arkansas constitution or the statehood bill. Opposition to both states’ bills persisted because the U.S. Congress had not authorized their constitutional conventions as required under the U. S. Constitution. Abolitionists objected to the slavery protections in the Arkansas constitution, and President Andrew Jackson’s opponents saw what they considered to be a rushed vote as little more than an election year stunt to pad the electoral vote totals of his chosen successor, Martin Van Buren. After a 25-hour session of the House, the Jackson forces gained firm control, and on June 16, 1836, the statehood bill was passed and signed into law.

Van Buren carried the state in the fall election, and Democrat James Sevier Conway became the first governor. Outside of the later crises concerning the collapse of the State Bank and the Real Estate Bank in the 1840s, Arkansas’s first constitution was a largely non-controversial one for the 25 years of its existence. Only two amendments were enacted; the first banned banking in the state after the bank scandals, and the other created additional circuit courts. The document’s life was cut short by Arkansas’s secession from the Union in 1861, which led to more than a decade of nearly continuous constitutional crises.