USA > North Carolina > History of North Carolina: The Colonial and Revolutionary Periods 1584 1783, Volume I > Part 40
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The Constitution was not the work of any one man, or group of men, though tradition and an occasional reference in contemporaneous documents attribute a few features to the influence of certain individuals. Tradition credits Cornelius Harnett with the authorship of the thirty-fourth article which declares, "That there shall be no Establishment of any one religious Church or Denomination in this State in Preference to any other, but all persons shall be at Liberty to exercise their own mode of Worship;" while Governor Cas- well attributed to Harnett's influence the refusal of the Con- vention to clothe the governor with adequate powers. In the Convention of 1835, John D. Toomer quotes tradition to the effect that Richard Caswell "dictated the principles, if not the terms," of the Constitution; and while the word "dic- tated" is surely too strong a term to be used in this connec- tion, it is certain that Caswell's influence was very great. Samuel Johnston, in a letter written in 1777, describes the plan of organization of the legislature as Thomas Burke's plan, of which he heartily disapproved. Johnston himself, although not a member of the Convention, was able to secure the incorporation of many of his views in the Constitution,
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especially those relating to the qualifications for suffrage and the method of selection and the tenure of judicial offi- cers. It is interesting to note that Johnston, the great Con- servative and, according to his enemies, the stern foe of de- mocracy, advocated annual elections. Writing while a constitu- tion was under discussion in April, he said: "The great dif- ficulty in our way is, how to establish a check on the repre- sentatives of the people, to prevent their assuming more power than would be consistent with the liberties of the people.
* After all, it appears to me that there can be no check on the representatives of the people in a democracy but the people themselves ; and in order that the check may be more ef- ficent I would have annual elections." To Johnston's great rival, Willie Jones, has been ascribed the determining influ- ence in the final shaping of the Constitution. The Constitu- tion, declared a delegate in the Convention of 1835, "is thought to have been as much or more the work (the 32d sec- tion excepted) of Willie Jones than any other one individual." Upon which Ashe quite pertinently comments that if this is so, Willie Jones was not the radical democrat he is popularly sup- posed to have been.2
Indeed, the student can make no graver mistake than to sup- pose that North Carolina, or any other American State, began its independent existence in 1776 as a pure democracy. "America in 1776 was not a democracy. It was not even a democracy on paper. It was at best a shadow-democracy." 3 To say this neither impeaches the wisdom nor decries the work of the framers of our first State Constitution. The truth is they did not intend to establish a democracy. The men who led and dominated the political thought in North Carolina in 1776 were English landowners whose political ideals were found in the British Constitution. This Constitution in its full vigor, as has been pointed out before, the early English settlers in North Carolina had demanded should follow them to the New World; and they had insisted that their charters should guarantee to them "all liberties, franchises and privi- leges" enjoyed by their fellow subjects in England. In 1776 they were in rebellion against the mother country because they believed her rulers had a purpose, in order to carry out their imperialistic policies, to ride roughshod over these same "liberties, franchises and privileges." Accordingly when they came to write their own constitution in 1776 they were much
2 History of North Carolina, Vol. I, p. 565.
3 Weyl: The New Democracy, p. 12.
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more determined to write into it those safeguards of political liberty which they considered had been guaranteed by the British Constitution, i. e., representative government, the principle that taxation without representation is tyranny, the right of trial by jury, the privilege of the writ of habeas corpus, the prohibition against the passage of ex post facto laws, the guarantee that no man should be deprived of his life, liberty, or property, "but by the law of the land," and all those other great constitutional principles that characterized the British Constitution-they were much more anxious to secure these principles to themselves and their posterity than they were to establish a democracy.
Consequently the government established by the Constitu- tion of 1776 was a representative democracy in form, but in form only. In fixing the basis of representation in the legis- lature the Convention paid no attention to population, but gave to every county the same number of representatives in both houses of the General Assembly, and to certain towns one representative each in the House of Commons, without regard to population. Nor were the qualifications for suffrage and office-holding fixed upon a democratic basis. To English statesmen of 1776-and such were the framers of our first State Constitution-manhood suffrage was a Utopian dream, interesting, doubtless, as a subject for philosophical specula- tion, but an impossibility in practical politics; and, although they conferred the right to vote for members of the House of Commons upon all freemen who had paid their taxes, they were careful to offset this concession to democracy by restrict- ing the right to vote for senators to those who possessed a freehold of fifty acres. Even less democratic were the qualifi- cations for office holding. No person could be a member of the House of Commons unless he possessed in the county which he represented "not less than one hundred acres of land in fee, or for the term of his own life;" no person could be a senator unless he possessed in the county which he represented "not less than three hundred acres of land in fee;" and no person was eligible for the office of governor unless he was possessed of a "freehold in lands and tenements, above the value of one thousand pounds"-an amount comparable to a fortune in our own day of at least ten times that sum. Other undemocratic features forbade any clergyman, while in the exercise of his pastoral functions, to sit in the General Assembly and im- posed a sectarian test for office holding designed to exclude Roman Catholics, Jews, and Atheists. The people had no voice Vol. 1-27
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in the selection of their public servants other than members of the General Assembly, for the governor and other executive officers, the councilors of state, and the judges were all elect- ed by the General Assembly; and the judges held office for life. No provision was made for calling a constitutional convention, or for amending the Constitution in any other way, and the Constitution itself, as has been pointed out, was never submitted to the people for ratification. As un- democratic as this Constitution was in form, it was even less so in spirit. Inasmuch as all officials were elected by the General Assembly, and membership in the General As- sembly was based upon a property qualification, property not men controlled the government. The theory of prop- erty was then, as it always has been, that the best govern- ment is that which governs least. It teaches that govern- ment has fulfilled its mission when it has preserved order, protected life and property, punished crime, and kept down the rate of taxation. Such was the theory of government which prevailed in North Carolina in 1776 and which, un- der the Constitution adopted in that year, continued to pre- vail in North Carolina for more than half a century.
After adopting the Constitution the Convention passed a series of ordinances providing for the government of the State until the close of the first session of the General As- sembly under the new Constitution. All those parts of the common law and such statutes in force under the royal gov- ernment which were "not destructive of, repugnant to or inconsistent with the freedom and Independence of this State, or of the United States of America," were declared to be still in force; and a commission including among its memb/rs such eminent lawyers as Samuel Johnston, Archibald Mac- laine, James Iredell, Samuel Ashe, Waightstill Avery, and Samuel Spencer, was appointed to revive, and present to the General Assembly bills for re-enacting, such former statutes as were "consistent with the Genius of a Free People" and their new form of government. The Convention performed a long delayed act of justice in adopting an ordinance em- powering all regularly ordained ministers of the Gospel of every denomination to perform the marriage ceremony ac- cording to the rites of their respective churches. Another ordinance defined treason against the new-born State and prescribed its punishment. The State was divided into ju- dicial districts, courts of oyer and terminer and general gaol delivery were erected, and the governor was authorized upon
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the recommendation of the Council of State to appoint judges to hold them. William Hooper, Joseph Hewes, and Thomas Burke were appointed a commission to procure a Great Seal, but in the meantime the governor for the time being was authorized to use his own "private Seal at Arms" on all public documents. Other ordinances named officials who should put the new government into operation. Collectors were appointed for the ports of Currituck, Roanoke, Bath, Beaufort, and Brunswick; and justices, sheriffs, and consta- bles in the several counties ; while Richard Caswell was named as governor; James Glasgow as secretary of state; and Cor- nelius Harnett, Thomas Person, William Dry, William Hay- wood, Edward Starkey, Joseph Leech, and Thomas Eaton as councilors of state, until their successors could be chosen by the General Assembly.
Richard Caswell, the first governor of the independent State, was perhaps the most versatile man of his genera- tion in North Carolina. He was distinguished among his contemporaries as surveyor, lawyer, orator, soldier, and statesman. A native of Maryland he had come to North Car- olina in 1746 as a youth of seventeen seeking his fortune. He was a surveyor by profession in which he was so skilful and energetic that within three years after his arrival he was appointed deputy-surveyor for the province. North Caro- lina at that time was an attractive field for surveyors. So rapidly were the vacant spaces in the colony filling up that at almost every sitting of the Council thousands of acres were granted to new settlers, and upon the skill, activity, and in- tegrity of the surveyors depended not only the interests of the Crown but the security of the thousands of pioneers who had braved all the hardships and dangers of the wilderness in their search for homes. A surveyor on the frontier must needs have steady nerves, keen eyes, and trained muscles, combined with indefatigable industry and determination, a cool head, and sound judgment. He must be skilled in wood- craft, and able to circumvent the cunning of the savage and the craft of the land-grabber. His work brought him in close touch with the people, and made him familiar with their con- ditions of life, problems, and habits of thought. No better school for the training of the man who was to become the civil and military leader of a pioneer people in a great revo- lution could have been found. It is interesting to note that while Richard Caswell was attending this school in North Carolina, another young surveyor, a few years his junior,
356 QUAM
SOUTH OF THIS TABLET, 166 YARDS, IS THE GRAVE OF RICHARD GASWELL, THE FIRST GOVERNOR OF NORTH CAROLINA. AS AN INDEPENDENT STATE
I WILL MOST CHEERFULLY JOIN ANY OF MY COUNTRYMEN, EVEN AS A RANK AND FILE MAN. AND WHILST I HAVE BLOOD IN MY VEINS FREELY OFFER IT IN SUPPORT OF THE LIBERTIES OF MY COUNTRY."
COLSTILL TO HIS SON IN 1715
ERECTED 1919 BY THE NORTH CAROLINA HISTORICAL COMMISSION, CITIZENS OF LENOIR COUNTY ANG CASWELL-NASH CHAPTER, D.
BRONZE TABLET ON STATE HIGHWAY NEAR KINSTON
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was attending a similar school on the vast estates of Lord Fairfax in the wilds of Western Virginia. The same train- ing that fitted George Washington for his career as comman- der-in-chief of the armies and the first chief executive of the United States, fitted Richard Caswell for similar duties in his more contracted field.
Caswell rose to his position of leadership through the regular gradations of service as assemblyman, speaker of the House of Commons, colonial treasurer, member of the Provincial Congress, delegate to the Continental Congress, and president of the first Constitutional Convention. In the various contests between the Assembly and the governor which led up to the Revolution, he stood among the foremost in support of popular government. He was ambitious for military fame, and entered with zest into the two campaigns conducted by Governor Tryon against the Regulators. These campaigns were excellent training for him and served to prepare him for his subsequent military career in the same way that the campaigns of the French and Indian War pre- pared a much greater American soldier for his career. Cas- well was one of the first to see that the contest with the mother country would probably lead to war, and was urgent in his appeals to the Provincial Congress to make military preparations for the emergency. Writing to his son from Philadelphia in 1774, he tells him to urge upon his neighbors that "it is indispensably necessary for them to arm and form into a company or companies of independents," adding: "If I live to return I shall most cheerfully join any of my country- men even as a rank and file man." When the Congress of August, 1775, provided for raising an army, he entered into the plans with zeal, and upon his election as colonel of the New Bern District, resigned his seat in the Continental Con- gress to take steps to raise, organize, equip and drill his regiment. His energy enabled him to meet the Scotch High- landers at Moore's Creek Bridge and win the initial victory of the Revolution in the South. His reward for this victory was his election as the first governor of the independent State. As governor he displayed the same zeal and fore- sight, but for reasons over which he had no control not the same success which had previously characterized his public actions. His patriotism though deep, fervent, and sincere, was stimulated by ambition for personal fame and power. Aggressive and domineering in overcoming opposition, he showed consummate address and skill in winning the confi-
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dence of the people which he possessed to a remarkable de- gree. He was elected governor of North Carolina seven times.
The executive branch of the new government went into operation January 16, 1777, when Caswell and the other state officials met at New Bern, took the oath of office, and entered upon the discharge of their duties. On April 7th, the legis- lative branch went into operation when the first Assembly un- der the Constitution met at New Bern and organized by the election of Samuel Ashe as speaker of the Senate and Abner Nash as speaker of the House of Commons. Since all the ordi- nances of the Convention were to expire at the close of this session, it fell to the lot of the Assembly to enact such legisla- tion as was necessary to put the new government into complete operation. The Assembly accordingly re-enacted the ordi- nance declaring what parts of the common law and former statutes were still in force. It amplified the ordinance defining treason so as to check active opposition from the Loyalists and prevent "the Dangers which may arise from the Persons disaffected to the State." The counterfeiting of the bills of the State and of the Continental Congress was made a fel- ony punishable by death. Other acts provided for the better regulation of the militia, the establishment of criminal courts, the collection of import duties, and the erection of admiralty courts. A radical but timely innovation in the fiscal policy of the State was introduced by an act which provided for the general assessment of property and the levying of an ad valorem tax on land, negroes, and other property. The Assembly also made provision for the administration of county affairs by the erection of county courts and the ap- pointment of justices, sheriffs and registers in the several counties. On April 18th, it re-elected Caswell governor, Glasgow secretary of state, and all of the former councilors except Dry and Person whose places it filled with William Cray and William Taylor. The work of this Assembly fairly launched the new State upon her stormy voyage of independ- ence and sovereignty.
A situation full of difficulties, dangers, and pitfalls con- fronted Caswell and his advisers. The remarkable fervor that had swept the colony into revolution and created an in- dependent government had been followed by reaction. En- thusiasm had given way to apathy, and henceforth, as far as the people generally were concerned, support of the com- mon cause was spasmodic and forced. This situation may
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be traced to four causes : first, the weakness of the executive under the new Constitution; second, the cleavage in the pa- triot party ; third, the presence of a large and active Loyalist element in the population; and fourth, the utter breakdown of the financial systems of both State and United States.
The successful conduct of war requires concentration of re- sponsibility and power. It was unfortunate, therefore, that North Carolina, especially at a time when there was no na- tional executive, should have entered upon a long and ex- hausting war with an executive to which all real power had been denied. An active, aggressive and resourceful gover- nor, seeing things that ought to be done and lacking au- thority to do them, was apt to chafe greatly under the re- strictions. Caswell had not been in office a year before the mistake of the Convention in this respect became appar- ent. Urged to pursue more "spirited measures" for filling up the State's battalions, he replied that his hands were tied because "by the Constitution of this State, nothing can be done by the Executive power itself, towards this most desirable purpose" and complained of the Constitution "for cramping so much the powers of the executive." The longer the war continued, the more apparent became the mistake of the Convention in withholding power from the governor. In 1781, Governor Nash wrote, "The Constitutional power of a Government [governor] in this State, is at best but very small, and in time of War, insufficient for purposes of Gov- ernment and Defence." In the military crisis of 1780-81 the executive broke down completely, and to meet the emergency the Assembly created first a board of war which it later su- perseded with a council extraordinary of three persons upon whom it conferred extra-constitutional powers, authorizing them not only to exercise all the powers "which the council of state might have exercised in a state of war," but also "to do and execute every other act and thing which may con- duce to the security, defence and preservation of this State." But this expedient did not solve the difficulty since it merely divided the executive functions among three men instead of concentrating and unifying them under a single head. As Governor Nash declared in a letter to Burke, the executive power was so divided and sub-divided that it had lost its force and "men, not knowing whom to obey, obeved no- body."
The constitutional deficiencies of the chief executive would have been greatly minimized if the several governors had
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had the support of a united constituency, determined to sub- ordinate all lesser, objects to the winning of independence. Unfortunately the cleavage in the patriot party rendered such united support impossible. During the session of the first Assembly under the Constitution, Abner Nash writing from New Bern thought "we are all harmony" and expected to see "a perfect good agreement" prevail in the two houses. But Nash having just been elected speaker of the House of Com- mons saw things through too rosy a medium. At the very moment that he was predicting an era of good feeling, the Radicals were laying plans to elect John Penn to the Conti- nental Congress in place of Joseph Hewes. "A warm strug- gle" ensued, in which Hewes was defeated. The result and the manner in which it was accomplished drove the iron into the souls of the Conservatives. Bitterly Johnston denounced the "fools and knaves" who were in control of the Assembly. "When I tell you," he wrote to Thomas Burke, a delegate in the Continental Congress, "that I saw with indignation such men as G-th R-d [Griffith Rutherford], T-s P-s-n [Thomas Person], and your Collegue J. Penn, with a few others of the same stamp, principal leaders in both houses, you will not expect that anything good or great should pro- ceed from the counsels of men of such narrow, contracted principle, supported by the most contemptible abilities. Hewes was supplanted of his seat in Congress by the most insidious arts and glaring falsehood, and Hooper, though no competitor appeared to oppose him, lost a great number of votes. Quince for no crime alleged against him, but that he was a man of fortune, was turned out of his appointment of Naval Officer of Port Brunswick." Johnston resigned as treasurer, and Hooper, piqued at his loss of popularity, de- clined to accept the seat in Congress to which he had been elected. Other Conservatives following the example of these leaders withdrew from public life.
Their retirement of course left the Radicals in control. Since Caswell was acceptable to them, as long as he was eli- gible for the office, they made no contest over the election of governor. In 1777, 1778, and 1779, therefore, Caswell was unanimously elected. But in 1780 he was no longer eligible, and for the first time a contest in the election of governor en- sued. Abner Nash, who is generally reckoned as a Conser- vative, was elected, but before his term was half gone the radical Assembly seem to have repented of their choice, and by an act creating a board of war deprived the governor of
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most of the few powers which the Constitution had conferred on him. Nash denounced the act as an unconstitutional change in the form of government. "When you elected me Governor of the State," he wrote, " you presented me the Bill of Rights and the Constitution, at the same time you presented me with the Sword of State as an emblem of the power I was invested with for the protection of the Constitu- tion and the rights of the people, and in a solemn manner you bound me by an oath to preserve the Constitution invio- late; and yet four months after my election the very same Assembly deprived me of almost every power, privilege and authority belonging to my office. I have no doubt that the secret Enemies of our Free Constitution exult at the introduction of such innovation and rejoice at seeing the first office in the State rendered useless and contemptible." De- claring that the creation of the Board of War left the gov- ernor nothing "but an empty title," he declined to permit himself to be considered for re-election. To succeed him, therefore, the Conservatives nominated Samuel Johnston, the Radicals, Thomas Burke. Burke was elected, but during his term, he was captured by a band of Tories and sent to Charleston, then held by the British, as a political prisoner. Unfortunately for his fame he broke his parole, made his es- cape and returning to North Carolina reassumed the duties of his office. Although he insisted that the cruelties and the illegal treatment to which he had been subjected justified his action, nevertheless it ruined his political career and com- pelled him to retire to private life.
In the election of 1782, at which Burke's successor was to be chosen, party spirit rose to a height greater than it had yet attained in the State. Five candidates were in nomina- tion, but the real contest was between Samuel Johnston and Alexander Martin. The Conservatives had good grounds for anticipating victory when their hopes were dashed to pieces by the course of Richard Caswell who threw all of his great influence in the scale with Martin. His action was decisive and Martin was elected. Johnston and his friends brought out of the contest a bitter grudge against Caswell, and eager- ly awaited an opportunity for retaliation. It came sooner than they could have expected. In 1783, Caswell, again eli- gible under the Constitution, appeared "with all his interest and address" in the field against Martin. The Conserva- tives in the Assembly, now under the aggressive leadership of the able but vitriolic Maclaine, threw themselves into the
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