The attitude of North Carolina toward continental authority reflected motives of self-interest and patriotic devotion. Liberal military support was given the Revolution, but state authority was maintained over all troops, even regiments in the continental line, often to the extent of conflicting with Congress. Delinquent in meeting its quota of national expense, generous response was made to recommendations for financial reform. In 1781 Congress was granted authority to levy a five per cent impost on foreign goods, and in 1782 the charter of the Bank of North America was validated. However, with the last year of the war the condition of federal finances became more serious. The continental currency had depreciated, the states were hopelessly in arrears with their requisitions, and radical reform or bankruptcy were inevitable alternatives. Under the advice and leadership of Robert Morris, Congress in the spring of 1783 proposed certain amendments to the Articles of Confederation. In its policy toward these, North Carolina also displayed an interesting balance of self-interest and altruism.
The first of the proposed amendments made population, five slaves counting as three whites, the basis of apportioning requisitions among the states. Now land granted or surveyed had been made the basis of apportionment in the Articles of Confederation through the unanimous votes of the Southern delegates in Congress, for it was believed that a land basis, restricted to surveyed or improved land, would impose the least burden on the South. By 1783 opinion was
North Carolina Delegates to the Convention of 1787
p23 changing. North Carolina had granted thousands of acres as bounties to soldiers; speculation was rife, land was being granted and surveyed more rapidly than it was being improved and made productive. Hence arose a feeling that population, five slaves counting as three whites, would incur less requisition than land. Hugh Williamson and William Blount, delegates of North Carolina in Congress, favored the change. The second recommendation was that the continental authorities be allowed to levy a specific duty on imports for twenty-five years. To this the North Carolina delegates offered no opposition, since the foreign commerce of the state was comparatively insignificant, and whatever burden involved would therefore be borne by other states. The third recommendation, however, was far more drastic. It was nothing less than a direct land and poll tax, the levy on land to be according to the number of acres, irrespective of quality. Williamson and Blount saw in this a hardship, but their interest was overshadowed by the fourth recommendation, the cession to Congress of all land west of the mountains. This they approved only on condition that North Carolina receive full credit for all services in the Revolution and that any state organized out of the ceded territory should assume its quota of the continental debt.
These recommendations were submitted to the legislature in the spring of 1784. They had the endorsement of Williamson and Spaight and also of Governor Martin. Approved by a legislative committee, they were adopted without protest, except the cession of western lands. Moreover, another recommendation, forwarded after these, was readily endorsed; that Congress should have the right to prohibit the importation of foreign goods in any ships except those owned by citizens of the United States, a measure aimed at the restrictive commercial policy of England. None of these measures went into operation, for those relating to revenue and navigation were not approved by all at states, and the cession of western lands was repealed by the next legislature. However North Carolina's record in the movement to revise the Articles of Confederation was unsurpassed; only one other state, Delaware, approved all the recommendations p24 of Congress. Moreover in 1785, after the recommendation for the control of navigation had failed of general approval, a local attainment of its ends was sought by levying five shillings per ton on every vessel of a nation, on entering a North Carolina port, which did not have a commercial treaty with the United States, and a duty of twenty per cent above the regular schedule on its cargo, except goods manufactured in the United States from domestic raw material.
The legislation of 1784 marks the high tide of interest in continental affairs. Thereafter less attention was given to Congress; frequently the state had been unrepresented in its deliberations, but the absence of delegates in 1785 and 1786 became notorious. For this, financial conditions were to a large extent responsible. The salaries of Congressmen were small, the depreciation of the state currency made them almost worthless outside of North Carolina, the treasury was so low that salaries could not always be paid, and in some instances the transportation of tobacco and other products north was the only means by which the North Carolina delegates could meet their expenses. The custom of appointing five delegates to serve in rotation, adopted in 1785, also proved a failure. Yet the sense of responsibility for continental affairs only waned and did not die, for in 1787 on the recommendation of Congress the Treaty of Peace was enacted into the law of North Carolina.
In the meantime a new movement to revise the Articles of Confederation was inaugurated. In July, 1786, Governor Caswell and the Council of State appointed five commissioners to attend the Trade Convention at Annapolis. Of these only one, Hugh Williamson, made an effort to go, and he arrived the day the convention adjourned. Then came the call for the Federal Convention to meet in Philadelphia for the purpose of remedying certain defects in the Articles of Confederation. The legislature which met in November, 1786, was much concerned with the investigation of the judiciary, frauds in the army accounts, and the affairs of the State of Franklin. Largely through the efforts of James Iredell, the convention movement was approved. Five delegates were elected, of whom three, Willie Jones, Alexander Martin, and p25 Governor Caswell were said to oppose, and two, Davie and Richard Dobbs Spaight, to favor, a revision of the Articles of Confederation. Jones and Caswell declined to serve, and acting under the law approving the convention, Caswell appointed in their places Hugh Williamson and William Blount. As these two favored the movement for revision, the character of the delegation was changed, all except Martin being in sympathy with the desire to amend the Articles.
The convention organized May 25, 1787. The impression made on one of their colleagues by the North Carolina members has been preserved in the notes of William Pierce, delegate from Georgia. To him Blount was a "character strongly marked for integrity and honor, plain, honest, sincere," about thirty-six years of age; Williamson, a "gentleman of education and talents" who "enters freely into public debate from his close attention to most subjects, but who is no orator," forty-eight years of age; Davie, "silent in the convention," whose "influence was always respected," age thirty; Martin, "not formed to join public debate, being no speaker," age forty.1 Of these delegates Williamson was most active in the convention, speaking more frequently and being appointed to more committees than his colleagues from North Carolina. Williamson and Spaight were present from their arrival until adjournment; Davie and Martin left before the convention rose, while Blount, although present at adjournment, was absent most of the time, attending sessions of the Continental Congress in New York.
When the convention proceeded to business, resolutions were offered by Randolph of Virginia which were revolutionary. Instead of revising the Articles of Confederation, they provided for three branches of government, a supreme legislature, executive, and judiciary. The legislature was to consist of two houses, the first elected by the people, the second by the first, with the right to negative laws infringing the Articles of Union and to use force against any state resisting its authority. The executive was to be chosen by the legislature, and with the judiciary was to act as a council of p26 revision with the power to veto acts of the legislature. The judiciary was to consist of supreme and inferior courts elected by the legislature, the judges to serve during good behavior. These resolutions were the subject of discussion from May 29th until late in June. The paramount issue was one of nationalization advocated by the large states, especially those with undeveloped western lands, and opposed by the small states. The North Carolina delegates cast their votes with the large states; their sentiment was for nationalization. Thus when Randolph proposed that representation in the legislature be according to taxation or free population, it was moved by Hamilton, of New York, and seconded by Spaight, that "suffrage in the national legislature ought to be proportional to the number of free inhabitants." It was also Spaight who first suggested the election of the members of the upper house by the state legislatures, and as a result the convention rejected the election of the second house by the first as proposed in the Randolph resolutions. However the North Carolina delegates agreed with the majority that the proportion of membership in the upper should be the same as in the lower house. Regarding the executive, Williamson and Spaight favored election by the national legislature. Concerning the veto power, the North Carolina delegates were less nationalistic; they opposed joining the executive and the judiciary in the revision of the laws, and Williamson suggested as a substitute that in all legislation a two-thirds majority be required; he was especially opposed to the legislature having any power that would restrain the internal police power of the states.
Against the nationalizing process there was increasing discontent. The small states finally made the matter of representation in the upper house a test of strength, demanding equality of representation. In the midst of the debate Benjamin Franklin called attention to the fact that the sessions of the convention had not been opened with prayer and suggested that application be made "to the Father of lights to illuminate our understandings." Quite a discussion followed; it was ended by Williamson who "observed that the true cause of the omission could not be mistaken. The convention p27 had no funds."2 Finally there was a tie vote on the matter of representation, North Carolina voting against equality. A committee of one from each state was then chosen to reach an adjustment, Davie representing North Carolina. The committee reported in favor of equality in the Senate, and of counting five negroes equal to three whites in apportioning representation in the lower house.
The ensuing debate marked the crisis of the convention. Three issues were involved. One was the equality of the states in the Senate versus proportional representation. Williamson, an exponent of the large state interests, declared the committee's report the most objectionable of any he had heard. Yet when its adoption was put to a vote on July 7th, North Carolina voted aye, while Virginia and South Carolina were among the nays, and Georgia was divided. Williamson declared that North Carolina conceded equality in the Senate on condition that money bills should originate in the lower house, thus compromising the interests of the large states and the small states. The question of apportioning representation in the lower house was equally serious. The committee recommended one member for every 40,000. The commercial interests demanded and secured an amendment that representation in the future should be according to population and wealth. To this Williamson was bitterly opposed, and he contributed to its final rejection by moving that the census by which the apportionment should be made should be limited to free and slave population. Finally, the anti-slavery interests were opposed to including slaves in the basis of representation, while South Carolina and Georgia demanded that the blacks be counted equal to whites. The three-fifths compromise reported by the committee was defended by Davie in strong language. "It was high time to speak out," he said. "He saw that it was meant to deprive the Southern states of any share of representation for their blacks. He was sure that N. Carolina would never confederate on any terms that did not rate them at least three-fifths. If the p28 eastern states meant, therefore, to exclude them altogether, the business was at an end."3 When the final ballot on the compromise was taken, the North Carolina delegates were a unit in its favor. Their vote was decisive and even magnanimous. Equality in the Senate was not to the interest of the large states, and North Carolina ranked third in population; hence four of the large states voted against the compromise, and Massachusetts was divided. On the other hand, the four small states, Connecticut, Delaware, Maryland, and New Jersey, were unanimously for equality. By forsaking the large states, her natural allies, North Carolina secured the compromise and probably saved the convention from adjournment without accomplishing its purpose.
Equally interesting was the feeling of the North Carolina delegates regarding the qualifications of senators and representatives. Williamson favored a longer residence as qualification for senators than for representatives, because "bribery and cabal are more easily practiced in the choice of the Senate which is to be made by the Legislatures composed of a few men, than of the House of Representatives who will be chosen by the people." On the other hand Davie was more optimistic; to him it seemed right to refer "the appointment to Legislatures, whose agency in the general system did not appear objectionable as it did to some others." Davie also opposed proportional representation in the Senate on the ground that large membership could not "possess the activity and other qualities required in it."4
The vote of the North Carolina delegates was also influential in another compromise, the adjustment of the slave trade and navigation acts. The delegates of Virginia and certain northern states desired to prohibit the importation of slaves, while the South, an agricultural section, feared the power of Congress over commerce. The matter was referred to a committee of one from each state, Williamson representing North Carolina. It reported against any restriction on the importation of slave prior to 1800, with no restriction on navigation acts. The South Carolina and Georgia delegates p29 were not satisfied; they demanded and secured an extension to 1808 of the time limit within which the slave trade should not be prohibited, and also demanded that a two-thirds vote be required for all acts of Congress regulating trade. Virginia, led by George Mason, opposed any concession to the slave trade but favored restrictions on the regulation of commerce. The North Carolina delegates took a middle ground, placing the interests of union above those of section. Thus Williamson declared that if the slave trade were at once abolished, "the Southern States could not be members of the union and it was wrong to force anything down that was not absolutely necessary and which any state must disagree to."5 The matter was again referred to a committee and its report gave the slave traffic lease on life until 1808. Williamson then made his more clear, declaring "that both in opinion and practice he was against slavery; but thought it more in favor of humanity from a view of all circumstances to let South Carolina and Georgia in under these terms than to exclude them from the union."6 With regard to the regulation of commerce the sentiment of the North Carolina delegates was likewise liberal. Williamson favored a two-thirds majority for trade laws but did not think it vital "because if the majority of the Northern States should push their regulations too far, the S. States would build ships for themselves." Spaight likewise declared that "the Southern States could at any time save themselves from oppression by building ships for their own use." Thus while the South Carolina, Georgia, and Virginia delegates drifted toward particularism, the North Carolina delegates placed union above sectional interests, and worked for compromises.
The attitude of the North Carolina delegates toward other problems of the convention was also notable. On the vexed question of the executive they favored election by the national legislature. When choice by electors was under discussion, Williamson moved that the number of electors from each state "should be regulated by their respective members in the first branch." On July 24th, four days after the electoral system p30 had been adopted, it was reconsidered on motion of Houston, seconded by Spaight, and Williamson made a lengthy criticism. He declared that "the proposed electors would certainly not be men of the first or even of the second grade in the states. These would all prefer a seat in the Senate, or the other branch of the Legislature." Moreover, Williamson did not like the unity of the executive; he wished the executive power to be lodged in three men taken from three districts into which the states might be divided. "As the executive is to have a kind of veto on the laws and there is an essential difference in the interests between the N. and the S. States, particularly in the carrying trade, the power will be dangerous if the executive is to be taken from part of the union, to the part from which he is not taken."7 Ultimately the elective system was re-adopted, but on the final ballot of September 6th, North Carolina voted nay. Likewise the count of electoral votes in the Senate was opposed by Spaight. "If the election or the electors is to be crammed down, he would prefer their meeting all together and deciding finally without any reference to the Senate," and he moved "that the electors meet at the seat of General Government."8 Williamson seconded the motion, but it received only one vote, that of the North Carolina delegation. The North Carolina delegates also favored a long term for the President and ineligibility for re-election. When the four-year term was finally adopted, the North Carolina delegation gave the only negative vote. The idea of impeachment was first suggested by Williamson, who moved, and it was seconded by Davie, that the executive be "removable on impeachment and conviction of malpractice or neglect of duty." It was Williamson also who fixed the majority to override the veto at two-thirds, a provision secured on the floor of the convention after the committee on unfinished parts of the Constitution, of which he was a member, had reported in favor of three-fourths.
Closely allied with the veto power was the question of the judiciary and civil rights. The North Carolina delegates opposed the union of the executive and the legislature in the p31 revision of laws, and as a substitute Williamson suggested that every act be passed by a two-thirds majority. He was also opposed to any power of the national government which would restrain the states in the regulation of their internal police, and at the close of the convention he suggested that jury trials be guaranteed in all civil cases.
When the work of the convention was concluded, the Constitution was signed by Blount, Spaight, and Williamson, Davie and Martin having left the convention before its work was completed. The Constitution was submitted to Congress and by Congress to the states for ratification or rejection.
The ensuing campaigns in North Carolina were the most exciting since the early years of the Revolutionary movement. Instead of the amended Articles of Confederation, for which delegates had been sent to Philadelphia, an entirely new instrument of government was before the people. In state politics there had been for some time a marked division between radicals and conservatives. That cleavage was now accentuated. The radicals, who had stood for inflated currency and proscription of the loyalists, saw in the Constitution a surrender of state sovereignty. The conservatives found in it a "supreme law of the land" which would protect property rights, stabilize the currency, and promote trade and other vital interests against particularistic policies. The latter assumed a party name, federalists, while the former were known as anti-federalists. First in the field with the new issue were the federalists. Before the adjournment of the Philadelphia convention, Williamson suggested the election of a conservative governor as a preliminary step, and in the state elections of August, 1787, the Constitution was an issue, although the final draft had not been completed. The radicals were victorious, securing a majority in both Commons and Senate. When the legislature met in November, the Constitution had been forwarded to the state authorities. Realizing the importance of the issue, partisanship relaxed, Samuel Johnston, a conservative, was elected governor, a state convention was called to meet at Hillsboro on July 21, 1788, and copies of the Constitution were ordered to be printed for distribution among the people.
p33 The convention campaign was hotly contested. Among the candidates were the ablest political leaders in the state. The case for the federalists was best presented by James Iredell. He was the author of an "Address by the Grand Jury of the Edenton District," drawn up in November, 1787, which endorsed the Constitution as a remedy for the unpaid national debt, the unfulfilled Treaty of Peace, the demoralized commerce, and other problems.9 In January 1788, under the pen name of "Marcus," he also wrote a reply to George Mason's "Objections to the New Constitution."10 Both pamphlets were scattered far and wide, the latter having a circulation outside the state. Later, in May, 1788, Davie and Iredell jointly produced a third pamphlet supporting the Constitution.
Equally notable was the campaign of the anti-federalists. Its cue was given by Willie Jones, of Halifax, ultra-democrat in theory, aristocrat in practice, intimate with the Virginia school of individualism. "The poor were to be ruined by taxes," he declared, "and no security for freedom of conscience" was given. In the Wilmington district Timothy Bloodworth, the blacksmith politician, led the opposition, while Joseph McDowell, Thomas Person, and Joseph Winston were anti-federalist candidates in the west. The state judiciary, foreseeing the power to be of the federal courts, was completely anti-federalist. Important also was the attitude of the clergy politicians. David Caldwell, the most prominent Presbyterian divine and long influential in politics, was an anti-federalist candidate. So was Lemuel Burkitt, a prominent Baptist minister and leader. An interesting glimpse of his activity in the campaign has been left by Elkanah Watson, who passed through North Carolina in 1788:
"The week previous to the election, I was riding in company with Major Murfee, who has been already introduced to the reader, and a Dr. Garvey, a warm hearted and energetic Irishman, several miles in the interior from Winton, where we noticed a paper pasted upon a tree, which read as follows: 'Notice! — On Wednesday next, at three o'clock, all persons desirous of hearing the new Constitution explained, p34 by Elder B–––––t, are requested to attend his church in the Woodlands, 17th March 1788.' The time appointed was only two days previous to the election.
"We felt indignant, at what we deemed an insidious attempt to deceive the community; and determined to be present in order to counteract his movement. On our arrival we found a horse hitched to every tree about the church, and the interior of the building crowded. We pressed our way into seats a little distance from the pulpit. B–––––t had been some time at his nefarious work, explaining the Constitution to suit his unhallowed purposes. He frequently cast a suspicious, disconcerting eye upon our pew. He then began to explain the object of the •ten miles square, as the contemplated seat of government. 'This, my friends,' said the preacher, 'will be walled in or fortified. Here an army of 50,000, or perhaps 100,000, will be finally embodied, and will sally forth and enslave the people, who will be gradually disarmed.' This absurd assumption set our blood in fermentation, strongly excited already in party feeling. We consulted the moment, and agreed to possess ourselves of the seat directly under the pulpit, and make an effort to discuss the subject or break up the meeting. We arose together, Garvey with the Constitution in his hand, supported by Murfee on his right and myself on his left. Garvey turned toward B–––––t, and said, in a loud voice:
" 'Sir, as to the ten mile square, you are' — here he was interrupted by a general movement and buzz, which instantly swelled into a perfect uproar. At this crisis we were in a most critical situation, and only saved from violence by the personal popularity of Murfee, who was universally beloved. We were glad to pass out with the torrent, gain our horses, and be off. We however attained our object — the meeting was dissolved.
"The next day Garvey and myself planned and executed a caricature; and as it was a new exhibition among the people, we hoped it would have a good effect at the polls. A clergyman was represented at the pulpit, dressed in his bands, with a label proceeding from his mouth having this inscription:— 'And lo, he brayeth!' This we committed to some resolute p35 fellows, with instructions to post it up at the door of the courthouse, on the opening of the polls; they engaged to defend and protect it. Some of B–––––t's friends, stung to the quick by the sarcasm, attempted to pull it down. A general battle ensued. This obstructed as we desired, the voting. Candles were lighted in the courthouse; these were extinguished in the melee and both parties in great confusion were left in the dark, literally as well as politically. I embraced the opportunity of taking French leave. B–––––t gained the election, to our great annoyance."11
Much was expected from the example of other states, especially Virginia, where anti-federalism was strong. Apparently extraneous influences did not shape the election in North Carolina. The choice of candidates was determined largely by social and economic forces. The variety of racial elements in the population made unity of action on any issue well-nigh impossible. A majority of the people were small farmers and traders, possessing little worldly goods. Hence a sense of individualism, devotion to right and liberties already won, and distrust of ideals that did not originate at home, characterized political thought. In contrast was the Constitution, which contained no bill of rights guaranteeing individual liberty, conferred on Congress the power of taxation and control over the currency, and provided for a system of justice independent of the state courts. Hence when the elections occurred, the anti-federalists won by a majority of 100 delegates, a majority unequalled in any other state.
When the convention met, the anti-federalists conceded to Samuel Johnston the honor of presiding. They then proposed through Jones to vote at once on ratification without debate, adjourn, and so save the people unnecessary expense. After a plea for a discussion by Iredell, Jones yielded. An extended debate followed. The policy of the anti-federalists was to say little, to make short, incisive criticism of some clauses of the constitution, to keep silent regarding others, and to throw the burden of debate upon the federalists. Though two of the delegates to the Philadelphia convention, Davie
The first objection raised was that of consolidation versus confederation. The words, "We the People," in the preamble were denounced by Taylor of Wayne as an assumption of power. "Had it said, 'We the States,' there would have been a Federal intention * * * but sir, it is clear that a consolidation is intended. Will any gentleman say that a consolidated government will answer this country? * * * I am astonished that the servants of the legislature of North Carolina should go to Philadelphia and instead of speaking of the State of North Carolina, should speak of the people. I wish to stop power as soon as possible, for they may carry their assumption of power to a more dangerous length. I wish to know where they found the power to say, We the People, and of consolidating the states."13 The answer of the federalists, best presented by Davie, was that in the past governments purely federal had signally failed; hence it was necessary to invoke the sovereignty of p38 the people "in order to secure the tranquility of the states and the liberty of the people." Although the foundations were laid on the people, "the state governments are the pillars upon which this government is extended over such an immense territory and are essential to its existence." In another connection he declared that "the State governments can put a veto, at any time, on the general government by ceasing to continue the executive power," viz., by refusing to choose presidential electors. Maclaine, another federalist, declared that "this is a government for confederated states, that consequently it can never intermeddle where no power is given." Evidently the federalist argument against consolidation was that sovereignty, according to the Constitution, is divided between the people and the states.
Unconvinced by the federalist theory of sovereignty, the anti-federalists pointed out the possibilities of oppression and tyranny. Illustrative was the power of Congress to levy direct taxes, which was held to be dangerous, liable to interfere with the taxing power of the states, and to bring suffering to the people. "It may happen, for instance," said Judge Spencer, "that if ready money cannot be immediately received from the profits of individuals from their taxes, their estates, consisting of lands, negroes, stock, and furniture, must be set up and sold at vendue. We can easily see, from the great scarcity of money at this day, that a great distress must happen in the country. * * * Such property will sell for one-tenth part of its value. Such a mode as this will in a few years deprive the people of their estates." In contrast he favored the system of requisition on the states by Congress, the states to make the actual levy, with authority for Congress to "take out of the pockets of the people at large if the states fail to pay the taxes in a convenient time."14
Along with federal taxation might come a host of federal officers, removable only by impeachment. "These senators and members of the House of Representatives will appoint their friends to all offices," said Taylor, and "these officers will be great men, and they will have numerous deputies under p39 them. The receiver general of the taxes of North Carolina must be one of the greatest men of the country. Will he come to me for his taxes? No. He will send his deputy, who will have special instructions to oppress me. How am I to be redressed? I shall be told that I must go to Congress to have him impeached. This being the case, who am I to impeach? A friend of the representatives of North Carolina. For, unhappily for us, these men will have too much weight for us; they will have friends in the government who will be inclined against us, and thus we may be oppressed with impunity."15 In reply Maclaine pointed out that impeachment applied only to higher officers of the United States, that the courts of common law would afford redress against the corruption of minor officials. Johnston also pointed out that direct taxes would not be so burdensome as requisitions, since "if the government have it in their power to lay those taxes, we will give them credit to borrow money on that security, and for that reason it will not be necessary to lay so heavy a tax, for if the tax is sufficiently productive to pay the interest, money may always be had in consequence of that security." This argument, however, did not appeal to the financial instincts of the small farmers. "Borrowing money is detrimental and ruinous to nations," said McDowell. "The interest is lost money. We have been obliged to borrow money to pay interest."16
In similar vein were other criticisms of federal power. The authority of Congress over federal elections was strongly denounced. "It deprives the people of the very mode of choosing" their representatives, said Spencer. "It seems to throw the whole power of election in the hands of Congress. It strikes at the mode, time and place of choosing representatives. It puts all but the place of electing senators into the hands of Congress. This supercedesº the necessity of continuing the state legislatures."17 According to Bloodworth, "Congress will make the time of election so long, the place so inconvenient, and the manner so oppressive, p40 that it will entirely destroy representation * * * The elections may be in such a manner that men may be appointed who are not representatives of the people. * * * As to the place, suppose Congress should order elections to be held in the most inconvenient place, in the most inconvenient district, could every person entitled to vote attend at such a place? Suppose they order it to be laid off into so many districts and order the election to be held within each district; yet may not this power over the manner of election enable them to exclude from voting every description of men they please?"18
The co-operation of the President and the Senate in the appointing power and in the negotiation of treaties was held to violate the principle of the separation of powers, and doubly dangerous since the Senate, which had the power of correction through impeachment, might be particeps criminis with the President. More vigorous was the opposition to provisions for a federal judiciary. Spencer granted the desirability of an appellate court, but saw danger in the establishment of minor federal courts. "There will be, without any measure of doubt," he said, "clashings and animosities between the jurisdiction of the federal courts and the state courts, so that they will keep the country in hot water. * * * The state judiciaries will have very little to do. It will be almost useless to keep them up."19 The absence of any guarantee of jury trial in the federal courts was also emphasized. "Can it be supposed any man of common circumstances," said McDowell, "can stand the expense and trouble of going from Georgia to Philadelphia there to have a suit tried? Can it be justly determined without the benefit of a trial by jury? These are things which have justly alarmed the people. What made the people revolt from Great Britain? The trial by jury, that great safeguard of liberty was taken away, and a stamp duty was placed upon them."20 The question of jury trial raised and emphasized another objection, the absence of a Bill of Rights. "When p41 individuals enter into society," said Spencer, they give up some rights to secure the rest. There are certain human rights that ought not to be given up and which ought in some manner to be secured." These should be especially guaranteed, since the federal courts would operate on individuals rather than states, their officers would be under oath to support the Constitution, and there was no clause in that instrument reserving to the states powers not granted.
The defense by the federalists at this point was that the purpose of the federal courts was simply to compel obedience to federal laws and to secure uniformity of justice among the state courts. Moreover, the impracticability of a guarantee of jury trial was pointed out by Iredell. "The trial by jury," he said, "is different in different states. It is regulated one way in the State of North Carolina and another way in the State of Virginia. It is established a different way from either in several other states. Had it then been inserted in the Constitution that the trial by jury should be as it had been heretofore, there would have been an example, for the first time in the world, of a judiciary belonging to the same government being different in different parts of the same country."21 The federalists also held that a Bill of Rights by its nature was not essential to a written constitution, and that the people through the Constitution "expressly declare how much power they do give and consequently retain all they do not."
The one practical issue of North Carolina politics injected into the debate was that of the currency. The anti-federalists claimed that the inhibition on the states to issue bills of credit would impair the value of the state currency of 1783 and 1785 and that it would prevent contracts made in paper money from being settled in specie. In reply Iredell pointed to the prohibition of ex post facto laws, but Maclaine admitted that federal taxes would be levied only in specie. Fear was also expressed that the Northern states, in which the principal industry was commerce, would have a majority in Congress and cause to be adopted a currency policy which p42 would be unsatisfactory to the South, which was agricultural. The prohibition of state laws impairing the obligation of contracts was also attacked as a possible means of forcing North Carolina to redeem paper money at face value. The probable assumption of state debts was also criticized in prophetic vein by Galloway. "I trust this country will never leave it to the hands of the general government to redeem the securities which they have already given. Should this be the case the consequence will be, that they will be purchased by speculators, when the citizens will part with them perhaps for a very trifling consideration. Those speculators will look at the constitution and see that they will be paid in gold and silver. They will buy them at a half crown in the pound, and get the full value for them in gold and silver."22
Such was the trend of the debate. To the modern reader the objections of the anti-federalists are apt to seem trivial, based on a superficial knowledge of the Constitution. Undoubtedly the federalists had a clearer and profounder understanding of its provisions. Yet in the anti-federalist argument there was something of the prophetic element, for as the years have passed the state courts have been overshadowed in importance by the federal judiciary, too often Congress as well as the national courts has been unresponsive to the will of the people, and the influence of the states on the destiny of the country has become relatively less, and that of the Federal Government, relatively greater.
After six days of discussion Samuel Johnston moved that the Constitution be ratified and that amendments be proposed, a procedure adopted in other state conventions. But Willie Jones, silent during the debate, took the floor and proposed instead of the vote on ratification, the submission of amendments and the deferring of further action to the future. Such a policy, he maintained, would insure amendments to the Constitution, in support of which he quoted Jefferson's letter to Madison to the effect that rejection by four states would insure amendments. As a concession to the federalists he recommended a resolution that the legislature should levy p43 an impost duty similar to that adopted by Congress, the proceeds of which should be paid to Congress. After strenuous objection by Johnston, Iredell, and Davie, Jones' proposal was adopted. A Declaration of Rights in twelve clauses and also twenty-six amendments were thereupon recommended. These were identical with the Bill of Rights and amendments submitted by Virginia except six of the amendments, which forbade Congress to declare a state in rebellion without the consent of a two-thirds vote in both Senate and House, to confer special privileges on any company of merchants, to ratify treaties that interfered with federal laws, to levy taxes on coastwise ships in transit, to interfere with redemption of state currency and its liquidation, or to introduce foreign troops in the United States without the vote of two‑thirds of both houses. Then the convention, having been in session for eleven days, adjourned on August 4, 1788.
The federalists were undaunted by defeat in the convention. In fact the trend of events elsewhere gave them courage. Virginia had ratified the Constitution in June, over a month before the Hillsboro convention had convened, and New York ratified shortly after it adjourned, leaving Rhode Island and North Carolina the only states not in the Union. Earnest efforts were made to win the state elections, which occurred in August. Again the anti-federalists won. After the legislature met, a bill for a second state convention was rejected in the House of Commons, a joint resolution for a second federal convention was adopted, and five delegates were elected. However, the federalists were busy among their constituents, and soon a flood of petitions for a reconsideration of the Constitution poured in. At last the radicals yielded, and a second convention was called to meet at Fayetteville. The date fixed was November 16, 1789, by which time the new government would be fully organized and its policy towards amendments would be tested. Thus an issue, that of amendments, was kept open, which might possibly be used against ratification. But the federalists in the first Congress, under the leadership of Madison, conceded the need of further guarantees of liberty and in May, 1789, brought forward the matter of amendments. The result was the first p44 ten amendments which met the principal objections raised in the Hillsboro convention, and removed the last arguments against ratification. Hence the Fayetteville convention ratified the Constitution on November 22, 1789, the seventh day of the session, by a majority of 118. Believing that all dangers of the federalist system had not been eliminated, the convention also recommended eight amendments; that Congress should not interfere with federal elections except when the states failed to provide adequately for them, that no state should be interfered with in the liquidation of its debts, that Congressmen should not hold federal office during their term of service, that the journals of the Senate and House be published once a year, that accounts of federal income and expenditure also be published annually, that no navigation or commerce law be passed without a majority of two‑thirds, that no soldier be enlisted for a longer period than four years p45 in time of peace, and that some tribunal other than the Senate be provided for the impeachment of senators.
Convention Hall, Fayetteville,
The belated ratification of the Constitution raises two questions. First is the wisdom of the course adopted. Concerning this there have been two views. One regards the action of the Hillsboro convention as a victory of provincialism and prejudice over the forces of progress from which the state gained nothing. The other view is that the refusal to ratify in 1788 was an act of sacrifice in the interest of principles which ultimately triumphed in the first ten amendments, and that the timely submission of those amendments was hastened by the action of the Hillsboro convention. The case for either interpretation rests on too slight evidence to be convincing. Moreover those disposed to criticize the policy pursued have almost uniformly eulogized Johnston, Iredell, and Davie, and found nothing to praise in Willie Jones. Likewise those who seek to justify the delay in ratification are prone to exalt Jones and to disparage his opponents. Thus has the historical literature of the state perpetuated the early prejudices of the federalists and anti-federalists. However, a few facts loom more prominent with the passing of the years. The Constitution proposed a radical change in the nature and structure of government; consequently there was bitter opposition in practically every state. In North Carolina there was never the slightest insinuation of political log rolling or corrupt influence at work in favor of ratification; the will of the people was plain and it was unobstructed. Yet the Hillsboro convention, while undoubtedly registering the popular will, did not reject the new form of government, but by offering amendments and adjourning, left open the way for later ratification.
The second question always raised by the state's policy is one of political science. What was the status of North Carolina between the organization of the new government in March, 1789, and ratification the following November? For this the answer is clear and unmistakable; in the light of actions by Congress and by the state, North Carolina was a sovereign and independent power. Tariff laws were enacted which treated North Carolina as a foreign country, p46 goods imported from its ports into those of the states in the Union being subject to the same duties as goods imported from Europe. Nor was the judiciary act to operate within North Carolina. In diplomacy the record also reveals independence, for Hugh Williamson, representing the interests of the state at the seat of the national government, protested against the tariff law and urged such a division of the national debt that North Carolina might assume its quota. Communications were also opened with the Spanish Minister in regard to the Indians west of the mountains. Evidently North Carolina was exercising sovereign powers when ratification placed limitations on its role as an independent state. Next to the last member to join the Union, it was also next to the last to undertake secession in 1861.
1 Notes on the Federal Convention (Am. Hist. Review, vol. III).
2 Farrand, Records of the Federal Convention, I.452.
3 Ibid., I.593.
4 Ibid., I.487, 542.
5 Ibid., II.373.
6 Ibid., II.415.
7 Ibid., II.100.
8 Ibid., II.526.
9 McRee, II.181.
10 Ibid., II.186.
11 Watson, men and Times of the Revolution, 262 ff.
12 Elliott, Debates in the Several State Conventions, Etc., IV.40 (Edition of 1836).
13 Ibid., 53.
14 Ibid., 97, 98.
15 Ibid., 71, 72.
16 Ibid., 193.
17 Ibid., 77.
18 Ibid., 79, 80.
19 Ibid., 148.
20 Ibid., 154.
21 Ibid., 172.
22 Ibid., 194.
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