USA > North Carolina > History of North Carolina, V I pt 2 > Part 19
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The other extreme view looked to uprooting every vestige The Radicals of the old government and the establishment of a pure democracy, with annual election of judges, clerks, and jus- tices of the peace by the freemen of the commonwealth. Between these two extremes there were many shades of opinion. In view of the necessity of framing a constitution. C. R .. X. 6cc on August 9th the council had prepared an address to the people, recommending that each county should choose five delegates particularly suited to represent them in this great work. Davis. the printer, was dilatory in printing this address for distribution, and Harnett expressed himself as anxiously awaiting the copies. "The advice of the council to C. R., X, ;87 the inhabitants has not yet got abroad," he said. "Davis ought to be hurried." Evidently he had the matter much at heart.
The election was held on October 15th. While there does not appear to have been any attempt at the organization of parties, yet here and there throughout the province oppo- sition was manifested to the election of particular persons. At New Bern, Tisdale unsuccessfully opposed Abner Nash. Hewes was returned from Edenton as usual : Penn was not elected from Granville, strange to say ; while Hooper was C. R., X. 914 returned from Perquimans, as well as from Wilmington. Hewes and Hooper stood on the same line as Johnston and Iredell, while Penn was an ultra-democrat, in line with Thomas Person. Harnett was so desirous of the election
IR-6 -
October
The Con- servatives
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THE CONSTITUTION OF 1776
1726 October of Hooper that he himself stood in Brunswick County. sur- rendering his hold on the borough of Wilmington that Hooper might be assured of a seat in the congress. Samuel Spencer, a strong democrat. was not returned from Anson. Mecklenburg added to her delegation Waightstill Avery, and Guilford, David Caldwell. There was considerable change in the personnel of the deputies. but except the change, above mentioned there was only one other notable leader not returned-Samuel Johnston. Allen Jones, John John- ston, and Thomas Jones and all the other conservatives were elected. For some reason a great effort was made to defeat Johnston, who had always been unanimously chosen to pre- side over the previous congresses, was in strong sympathy with the Continental Congress. and an ardent promoter of every measure tending to sustain independence : no man was McRee's Iredell, I, 334 more fixed than he in his American principles. No means were spared to poison the minds of the people against him personally : "to inflame their prejudices, excite alarm, and sow in them by indefinite charges and vague whispers the seeds of distrust." There was a hot and spirited canvass. resulting in Johnston's defeat : and the triumph was cele- brated with riot and debauchery, the orgies being con- C. R., X,914 cluded by burning Johnston in effigy. While Hewes was elected from the borough, and Thomas Benbury and Thomas Jones were returned from the county. James Blount. Luke Sumner, and Jacob Hunter replaced Sam Johnston, John B. Beasly, and Thomas Hunter. Apparently James Blount was the opponent of Johnston, and succeeded in displacing him. The election and its result in Chowan led to the character- ization of Johnston's opponents by Mr. Iredell as "rioters." to whom he ascribed such principles as these : "I despise every man who differs from me. I am sure he must be McRee's Iredell, I, 335. 336 a Tory. I think a man more liable to be a Tory who has hitherto been most earnest in the cause." "I impute to gen- tlemen all our present difficulties." "I am a sworn enemy to all gentlemen." "I believe it honorable and proper to per- secute poor distressed individuals when we have them in our power, provided we want courage to prove in any other manner the alacrity of our zeal against those we suppose enemies of our country." This "creed of a rioter" would
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PERSONNEL.OF THE CONGRESS
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indicate that the principal charges against Johnston were personal. based on his wealth and lofty bearing and on some November kindness to distressed persons, perhaps Tories, which was imputed to him as Toryism. There is found in it no trace of (lisagreement between him and his countrymen on the funda- mental principles of government. The strenuous opposition to him has been attributed to Willie Jones and his friends, it being suggested that they desired to remove Johnston from his dominant position in public affairs, the more readily to secure the adoption of an ultra-democratic form of govern- ment, which he opposed ; if so. his defeat was without avail.
The congress meets
The congress met on November 12th, at Halifax, and C. R., X, Allen Jones proposed Richard Caswell for president, who 913 was accordingly unanimously chosen. Theretofore all votes in the several congresses, as also in the council, had been by counties and towns ; now it was determined. against the vote of the Albemarle section and the towns of Brunswick and New Bern alone, that all questions should be determined by the voice of the several members. A majority of the members were to govern. not a majority of the counties. At once the congress appointed a committee composed of the president, Thomas Person, Allen Jones. John Ashe. Abner Nash, Willie Jones, Thomas Jones, Simon Bright. Christopher Neale. Samuel Ashe, William Haywood, Griffith Rutherford. Henry Abbott. Luke Sumner, Thomas Respis, Archibald Maclaine, James Hogun, and Hezekiah Alex- ander to frame a constitution. In the formation of this committee the eastern members largely predominated. there being from the west only one member each from Granville, Rowan, and Mecklenburg. while Dobbs. Craven. Chowan, and New Hanover each had two members. Subsequently, however, as other members came in. there were added to that committee Waightstill Avery. Whitmel Hill. Thomas Eaton. John Birdsong. Robert Irwin, Joseph Hewes, Cor- nelius Harnett, William Sharpe, and John Spicer, four of whom were from the west. It would seem that where one conservative was appointed on the committee he was im- mediately followed by a democrat. the committee being about
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THE CONSTITUTION OF 1776
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evenly divided, and doubtless well representing the senti- ments of the congress. It at once began its work, but week's were to elapse before it completed its plan of government.
Proceedings in the congress C. R., X, 903
Additional battalions
An attack on South Carolina being feared, for a large fleet bearing a considerable number of troops had sailed from New York supposed to be destined for Charleston, the congress ordered General Moore to march with the con- tinentals for the relief of that city, and a committee was raised to consider the most speedy method of embodying five thousand militia to aid in defence. Three additional regiments of continentals were also provided for, to be com- manded respectively by James Hogun, James Armstrong, and John Williams. Hooper and Hewes were re-elected delegates to the Continental Congress, but Penn now gave place to Dr. Burke, of Orange County. It is to be observed. however, that although Penn was not chosen a member by his county, nor retained in the Continental Congress, he was appointed one of the committee "to revise and consider all such statutes and acts of assembly as are in force in North Carolina, and to prepare bills to be passed into laws con- sistent with the new form of government." He was not entirely ignored. And Sam Johnston was named second on this very important committee, the first being Thomas Jones. A seal of State being necessary, the congress di- rected Hooper, Hewes, and Burke to procure one: and in the meantime the private seal of the governor was to be affixed to all grants and other public acts of the State.
Criminal courts
To enforce the criminal laws, temporary courts of over and terminer were established to be held in the several dis- tricts of the State. two persons learned in law in each district being appointed by the governor to hold them. It was enacted that all of the former statutes and such parts of the common law as were not inconsistent with the free- dom and independence of the State should continue in force until the next Assembly.
Bayard Z's. Singleton, I North Carolina Reports
The royal government being subverted and a new State erected on its ruins, the people felt as if "they had been marooned on some desert island." without a constitution. government or laws, and the congress addressed itself to organizing civil affairs. All glebes and lands formerly held
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ACTION OF THE CONGRESS
by any religious society were declared vested in their owners : and the congress ordained that all regular ministers of every denomination should have power to celebrate matrimony according to the rites and ceremonies of their respective churches, they, however, observing the rules and restrictions provided by law. It was particularly necessary to establish citizenship. The congress directed the governor to offer free pardon and protection to all persons who should within ninety days take the oath of allegiance to the State, and those who refused to take the oaths were declared in- capable of bringing any suit, or purchasing any lands, or transferring their lands, which were declared forfeited to the State. All persons residing within the limits of the State were held to owe allegiance ; and it was declared that any one who should thereafter levy war against the State or adhere to its enemies or give them aid and assistance or intelli- gence shall be adjudged guilty of high treason and suffer death. and forfeit his property ; but on conviction the judge might make provision out of the forfeited estate for the wife or children of the criminal; and it was declared that any person owing allegiance to the State who should deny the supreme authority of the people, or assert that those who had taken up arms were rebels, or deny the lawfulness of defending the State. or do any act tending to propagate and spread sedition, should be adjudged guilty of a misde- meanor.
1776
S R .. XXIII, 490, 997
Citizenship established
The principles of government
The matter of ordaining a new government had received thoughtful attention .* In every colony much consideration had been bestowed on fundamental principles. The people were embarking on unknown seas, and the principles of gov- ernment were much discussed. Articles on the subject were widely circulated. It seems to have been generally consid- ered that the legislative power ought to be vested in two
*Apparently after the failure to agree on a constitution at the S. R., XI, previous session some one wrote to John Adams for an expression 321 of his views, and his reply is preserved in Governor Caswell's letter- book. Governor Swain said it was addressed to Burke. We should think that it was addressed to Caswell. The constitution contains some of the principles he advocated. (N. C. Uni. Mag., 1856. 232. )
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THE CONSTITUTION OF 1776
1.76 - bodies, not one, as in Pennsylvania : while there was differ- ence of opinion as to whether the executive should have any legislative function. Other points of difference were as to the election of the chief executive and other great officers. whether by the people themselves or by the Assembly ; and particularly as to the election and term of office of the judges : also as to the qualification of the electors. In some of the colonies all freemen could vote: in North Carolina only freeholders had enjoyed that right.
Sovereignty of the people
C. R., X, 8701
The fundamental principle of the sovereignty of the people was universally accepted. It was held that political power is of two kinds-one the principal and supreme, the other the derived and inferior: the first possessed only by the people, the other by their servants : that what is ordained by the people cannot be altered but by them ; that the legislature must observe the limitations and restrictions imposed by the supreme power: and that the executive, legislative, and judicial powers are distinct and independent. These prin- ciples were embraced in a set of maxims, which doubtless were extensively disseminated throughout all the colonies. They were embraced in the instructions given by the people of Mecklenburg and of Orange for the guidance of their delegates in the congress: and. indeed, the exact agreement of the seven principles first declared in these instructions indicates that they had a common source.
The Orange instructions
Among the Orange instructions was one to the effect that all officers should give an assurance that they "do not acknowledge supremacy, ecclesiastical or civil, in any for- eign power, or spiritual infallibility, or authority to grant the divine pardon." This was in the handwriting of Dr. Burke. himself a Roman Catholic. Similarly, Mecklenburg in- structed that no atheist nor any one who denied any of the Persons of the Holy Trinity, or the divine authority of the Old and New Testament, or who should be of the Roman Catholic religion, should hold any office in the State. Orange County provided for two branches of the Assembly.
C. R., X. 2 10. 8700, Saug
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HOOPER'S DIEIT'S
one to be elected by the freeholders and householders and the other by freeholdlers only: while Mecklenburg, whose instructions were in the handwriting of Avery, required that both branches of the legislature should be elected by "the good people of the State": and further. that "all judges should be appointed by the General Assembly, and that their term of office should be for one year only." Mecklenburg also directed that there should be a land tax, and that all should be taxed according to their estates : and that a college should be handsomely endowed in that county.
Both Hewes and Penn returned to North Carolina at that time, and Hooper. feeling constrained to remain in atten- dance on the Continental Congress, wrote his views for the consideration of the congress. "Let us consider." said he. "the people at large as a source from which all power is to be derived. . . Rulers must be conceived as the creatures of the people. . A single branch of legislation is a many-
headed monster. . . and its members become a tyranny. dreadful in proportion to the numbers which compose it.
. . I am now convinced that a third branch of legislation is at least unnecessary. But for the sake of execution we must have a magistrate solely executive." He urged that the constitution of Delaware, which had been promulgated in September. had great merit: "I admire," said he. "no part of the Delaware plan more than the appointing judges during good behavior. Limit their political existence. and make them dependent upon the suffrages of the people, that instant we corrupt the channels of public justice. Rhode Island furnishes an example too dreadful to imitate." Be- sides the Delaware plan, the congress had also the new con- stitutions of Virginia. South Carolina, and New Jersey for reference. The committee doubtless availed themselves of every aid in performing their important duty ; but the pre- vailing ideas were. not unnaturally, similar to those that found expression in the bill of rights* and constitution of the adjoining State of Virginia.
*The Bill of Rights of Virginia was written entirely by Thomas Jefferson, while the body of the constitution was prepared by George Mason. ( Wirt's Life of Patrick Henry, 215.)
1 -- 5
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The Meck- lenbur: in- structions
C. R., X. 867. 868
56.4
THE CONSTITUTION OF 1776
1775 S. R .. XVIII. 139 The framers of the constitution
Although some members exercised more influence than others, it would seem that the work of the committee was the joint product of the intelligence of all of the members. In 1787 Judge Ashe said to the legislature: "If my opinion of our constitution is an error, I fear it is an incurable one. for I had the honor to assist in the forming it, and confess 1 so designed it. and I believe every other gentleman con- cerned did also"; from which it would be inferred that the constitution was the joint product of the members who "designed it."
Debates in convention in 1835. 43. 313
Although Thomas Jones was the chairman, the president of the convention. Caswell, was perhaps the most influential member. Of him the venerable Nathaniel Macon said : "He was certainly one of the most powerful men that ever lived in this or any other country"; and Judge Toomer said : "Such was his influence in the convention that tradition says he dictated the principles, if not the terms, of the instrui- ment." On that committee were also Harnett. Thomas Jones. Willie and Allen Jones, Maclaine. Avery, John and Sam Ashe, Thomas Person and Abner Nash.
These and others as well, members of the committee. were men of decided convictions and were not overshadowed by any of their associates. Still Caswell. being president of the convention, probably exerted a strong influence not only in the committee, but in the congress, and as he had apparently sought the views of John Adams and preserved Adams's letter in his executive letter-book. it is an inference that he agreed with the sentiments of the New Englander, which were conservative.
S. R., XI. 504 ; XIII, 31
That Dr. Burke had a principal hand in devising the legis- lative plan may be gathered from Johnston's writing to hin of it as "your plan"; while Caswell said if there is any blame to be fixed on those who formed the constitution, his good friend, Mr. Harnett, ought to take a very considerable part of it to himself for cramping so much the powers of the executive. To Harnett also, by tradition, is assigned the authorship of the thirty-fourth article, placing all denom- inations on the same footing, granting entire liberty of
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FORM.ITION OF THE CONSTITUTION
worship, but not exempting preachers of sedition from legal 1776
punishment .*
Mr. Wilson, of Perquimans, remarked in the convention of 1835 that the "constitution is thought to have been as much or more the work ( the thirty-second section excepted ) of Willie Jones than any other one individual." But if so. Willie Jones was not such a radical democrat as some have supposed.
Debates in convention. 1835, 394
Doubtless there were many concessions and compromises.
The draught reported
For three weeks the committee was framing the instru- ment ; and then, on Friday, December 6th, Thomas Jones informed the house that the committee had prepared the form of a constitution, which he read in his place and sub- mitted to the house. It was thereupon ordered that a copy should be made for each county and for each district, and it should be taken under consideration the following Monday.
Of the first draught we have no copy and but little infor- ination of its provisions, for the instrument as perfected was probably much amended by the congress itself. It may be conjectured that the committee followed the plan indicated by Thomas Jones in the preceding congress and provided for two branches of the legislature, one elected by the free- holders and the other by the freemen. The justices were to be elected by the people. Johnston on December 7th wrote : "There is one thing in it which I cannot bear, and yet I am inclined to think it will stand. The inhabitants are em- powered to elect the justices in their respective counties, who are to be the judges of the county courts. Numberless inconveniences must arise from so absurd an institution." This was changed by the congress. There was no religious test for office in the committee's report. but one was inserted by the congress. On Monday and Tuesday the house con- sidered the constitution, when it was read paragraph by paragraph, amended and passed the first reading. On Thursday it was again read and debated paragraph by para-
*It is said that Governor Swain once mentioned that a large part of the original draft of the constitution was in the handwriting of Waightstill Avery.
C. R .. X, 954
C. R., X, IC40
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THE CONSTITUTION OF 1770
1726
graph and passed its second reading. Thomas Jones then reported the bill of rights, which he read in his place ; and this was taken up on Saturday. debated paragraph by para graph, amended and passed its first reading.
McRee's Iredell, I, 339
On December 13th Johnston wrote: "One of the member , from the back country introduced a test by which ever: person before he should be admitted to a share in the legis- lature should swear that he believed in the Holy Trinity and that the scripture of the Old Testament was written by divine inspiration. This was carried after a very warm debate. and has blown up such a flame that everything is in danger of being thrown into confusion. They talk of having all the officers. even the judges and clerks. elected annually. with a number of other absurdities." This was the talk in the house, not in the committee. It was a departure from the Virginia constitution and from the committee's plan, and it precipitated a contest.
The following Tuesday the bill of rights was read para- graph by paragraph, amended, passed and engrossed. It contains many of the principles of Magna Charta. For sev- eral days the constitution was yet further considered, the house reading it paragraph by paragraph and amending it. Finally it was perfected, passed, engrossed. and ordered to C. R., X,97+ be immediately printed and distributed. The committee was appointed November 13th. reported on December 6th, and the constitution was under consideration by the entire body for twelve days, when it was adopted on December 18th. Each word in it was often weighed, debated, and passed on by the house itself.
Whatever may have been the particular zeal of this man or that in the committee, or in the house, every principle contained in the instrument and every provision of it was responsive to the will of the majority of the members.
Similarity to Virginia constitution
As perfected, it nearly approached the Virginia consti- tution with its bill of rights. The second branch of the legislature, which in every other province but Virginia was known as the council, was denominated the senate. Virginia being the first to introduce that word in American history. Senators were to be elected only by freeholders, while assemblymen were to be voted for by all citizens who had
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PROVISIONS OF THE CONSTITUTION
paid their public taxes. The governor and other great officers were to be elected by the General Assembly, and the judges were to hold their offices during good behavior. as in Virginia. The justices of the peace were to be recommended to the governor by the representatives in the Assembly, and when commissioned by him were to hold their offices during good behavior. and were not to be removed from office by the General Assembly unless for misbehavior.
Thus was established a representative republic far re- moved from the pure and simple democracy which some have said that Willie Jones advocated. Indeed, the Consti- tution conformed in many respects to the views of Johnston, although he was not a member of the congress. There were to be annual elections of assemblymen, and a governor annually elected and ineligible after three years of service until a like period had elapsed : and the judiciary was entirely independent. Still Johnston remained opposed to the plan for constituting the legislature, and became discontented, perhaps the more because the people had burned him in effigy.
Mecklenburg's voice for the establishment and endow- ment of a school in that county seems to have been answered by a provision that a school or schools should be established by the legislature for the convenient instruction of youth, with such salaries to the masters, paid by the public, as may enable them to instruct at low prices : and all useful learning should be duly encouraged and promoted in one or more universities. The western member who offered in the house that legislators should swear that they believed in the Holy Trinity, as required by the Mecklenburg instructions, may have been Rev. Dr. David Caldwell, of Guilford, who was not a member of the committee. The introduction of that test raised a flame. Many of the public men of that era were deists ; some were atheists. It is said that some of the lead- ing members of the convention were of that mind. and it was for that reason, perhaps, that this proposed section caused such excitement. Besides, if the original proposition followed the Mecklenburg instructions throughout, it ex- cluded from office all Roman Catholics, and Burke was of that faith. as well. perhaps. as others of the congress. The
1776
A represen- tative republic
S. R., XI, 504
Public schools
The religious test
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THE CONSTITUTION OF 1,76
1,76 $32 of Constitution
Mecklenburg proposition was, however, somewhat altered before adoption :* but still no one who denied the truth of the Protestant religion or the divine authority of the Old and New Testament, or should hold religious principles in- compatible with the freedom and safety of the State, was to be admitted to office. This apparently was not thought to exclude Roman Catholics, who from the first held office unquestioned. It did exclude atheists and infidels, but none of the public men of North Carolina appear to have fallen within that category, although tradition attributes to some of them a little laxity in their religious beliefs. No public man, Roman Catholic or of atheistical inclinations, ceased to hold office.
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