For forty years after the ratification of the Federal Constitution late in 1789, the most important issue in North Carolina was that of revising the State Constitution of 1776. The demand for reform, frequently voiced and as frequently stifled, gradually became more insistent until by 1830 it overshadowed all other questions, impeded plans for social and economic improvement, produced the dilemma of reform or revolution, and culminated in the constitutional convention of 1835. The causes of the agitation were various; they may be classified in three groups, — forms of government incompatible with the growth of democracy, local sectionalism and economic reform, and minor social and political issues. However these causes were not separate and distinct; they were clearly related to each other, the influence of one reinforcing the agitation of the others until finally the entire state was convulsed over the problem of constitutional revision.
The first cause of discontent, forms of government out of harmony with the advance of the democratic ideal, is made clear by the certain provisions of the Constitution of 1776. "All political power is vested in the people and derived from the people," said the opening clause of the Bill of Rights. In contrast certain clauses in the Constitution placed restrictions on the exercise of political power by the people. The governor was required to possess in freehold lands above the value of £1,000, members of the Senate •300 acres or more, and members of the House of Commons •100 acres. The landed class was thus given a monopoly on the legislature and the executive. Regarding suffrage there was a compromise. To vote for state senator a citizen was required to possess •fifty p141 acres, but to vote for members of the House of Commons payment of taxes only was necessary. Of these qualifications the 50 acres for senatorial suffrage and the 100 for membership in the Commons were survivals of colonial practice; that requiring senators to possess 300 acres was an innovation.
Another requirement of the Constitution which also proved inadequate was the dependence of the executive on the legislature. The governor was elected annually by the General Assembly; he also had no veto power, and any independence of action on his part was checked by a council of state, appointed by the legislature, whose advice was official, and whose records were open to review by the legislature. Thus the office of governor was deprived of prerogatives it had enjoyed in the colonial period. Other executive officers, the treasurer, the comptroller, and the secretary of state, were also elected by the legislature. Nor did the judiciary fare much better. The judges were elected by the legislature, and the justices of the peace were appointed on the nomination of the county members of the legislature. The judges held office during good behavior, but the permanence of their salaries was not guaranteed, and there arose a strong feeling that the independence of the judiciary was not secure.
The test of years soon revealed serious defects. Among these was the absence of a strong, independent executive, a weakness caused by the dependence of the executive on the legislature. William Hooper is reported to have said that "the governor was given just enough power to receipt for his salary and even this was left in the hands of the General Assembly." Annual elections brought forth many candidates; the dead lock and the dark horse were the result. Said Mr. Speight in 1835: "No member knows until he gets to Raleigh who will be the candidate for that office. Sometimes three or four candidates will be run and so many days spent without either obtaining a majority; and then probably by some arrangement among the members one of the lower candidates in the former ballotings may be elected."1 A greater evil was the annual term which gave the governor no time to initiate p142 ideas or to formulate a constructive policy. The result was that the office of governor was too often sought as a stepping stone to higher honors. Says a pamphlet of 1833: "Is the office of governor oftener coveted for its own sake or a stepping stone to other stations of preferment in the gift of the legislature? Does it comport with the dignity of the office that the incumbent shall be forced to win it by personal electioneering among the members of the Assembly?"2
There were also evils in the legislative system. The Constitution did not fix the time of sessions; custom made them annual. The result was all the evils of over-legislation. Statutes whose value was questionable were often enacted with the intent of repealing them the next year if they proved unsatisfactory. There were thus frequent changes in the law, and, as roads and mail service were poor, the knowledge of a statute often barely reached the people before it was repealed or superseded by another. The scope of legislative action was also very wide. Many of the present-day duties of local government and the courts were performed by the General Assembly. Among these were the opening of roads, the construction of bridges, the granting of divorces, and the legitimization of children. Here was an opportunity for the local Solons. Desiring fame or re-election, they introduced many bills of a purely local nature which were often modified or repealed to meet the demand of popular opinion. There was a strong tendency for local legislation to occupy most of the time of the General Assembly. The session of 1833 may be taken as an example. It lasted nearly three months, enacted thirty-two public laws, one hundred and fifty-five private acts, and fifty resolutions. Such a record caused criticism in all parts of the state.
Besides producing inefficiency in the law, annual sessions were the cause of increasing expense. As new counties were formed, the number of members increased. Thus in 1776 there were only thirty-six counties which, together with the boroughs, elected 114 senators and representatives; in 1833 p143 the counties had increased to sixty-four and the number of legislators to 199. Moreover as membership expanded, there was a tendency for the sessions to become longer. The expense of legislation therefore increased. In the early years of statehood the annual expense of the legislature was $15,000; by 1830 it had increased to $40,000. Under the existing condition of the finances this was a burden. In 1833 the treasurer estimated the total expense of the state government at $160,000, the available resources at $140,000 and the largest single item, the cost of the legislature, at $42,000.
In addition to these larger constitutional issues, there was also a demand for minor reforms — such as equalization of the poll tax among whites and blacks, prohibiting members of the legislature from holding office under both state and federal governments, and shortening the term of office of the attorney general from life to a number of years. Equally important in the agitation for reform were certain political and social issues — borough representation, religious disabilities for office-holding, and free-negro suffrage.
Of these institutions and customs, borough representation was by far the oldest. It illustrates the transfer of British institutions to Carolina. The Charter of 1663 authorized the Lords Proprietors to give "letters patent of incorporation with all liberties, franchises, and privileges requisite and useful within this our kingdom of England, granted or belonging." As there was neither vigorous commercial life nor distinct economic interest to be specially guarded during the colonial period, the only reason for establishing boroughs was to encourage town life and to perpetuate British institutions. Nine boroughs were incorporated, viz.: Newbern, Bath, Edenton, Wilmington, Brunswick, Halifax, Salisbury, Hillsboro, and Campbelton. In these suffrage was limited to freeholders or householders, and representation to freeholders. By 1776 there was a widespread discontent with the borough franchise, and in the Constitution the franchises of Bath, Brunswick and Campbelton were not perpetuated; but, as a concession to commerce, the privileges of Newbern, Wilmington, Halifax and Edenton were continued. However, these were eastern boroughs; to conciliate the west the franchises of Hillsboro p144 and Salisbury were also preserved; and in 1789 the convention which ratified the Federal Constitution revived the franchise of Campbelton, changing the name of the borough to Fayetteville.
By 1835 there was a strong feeling that borough franchise must go. For this there were several reasons. One was the general decline among the eastern boroughs. Their commerce did not flourish and their population did not increase. In the convention of 1835 this criticism was well stated by Mr. Wilson of Perquimans, an easterner: "If it be true that this right of representation is essential to the protection of their interests, why has not the fostering care of the legislature for more than fifty years been able to prevent them from sinking into ruin? Halifax, sir, is gone; Edenton is gone, and Newbern is not far behind * * * but, sir, it is said that there are mysteries about this trade and commerce that only mercantile gentlemen can understand. Why, then, do they not send here merchants instead of lawyers or doctors?"3 Of more weight than this were the violence and abuses in the borough elections. Said Mr. Smith, of Hillsboro: "Has the moral condition of the borough towns been improved by the privilege which they possess of sending members to the legislature? On the contrary, the annual elections, it is notorious, in most of the towns are productive of feuds, quarrels, and bloodshed. Mechanics and others are excited by the parties interested in such elections, business is neglected, and the morals of the people are corrupted."4 Similar criticisms were made by delegates from Halifax and Wilmington.
The provisions of the Constitution regarding religion were no more satisfactory than borough representation. While they had no large place in the agitation for reform, they illustrate some of the prejudices of the past and the inadequacy of the Constitution for actual conditions. Three principles were fixed in 1776; that there should be no established religion, that no minister of the gospel while in the active discharge of his pastoral duties should be a member of the legislature or the council of state, and that no one who denied the p145 "being of God or the truth of the Protestant religion, or the divine authority of either the Old or the New Testament, or who shall hold Religious principles incompatible with the freedom and safety of the State," should hold office or position of trust. The sources and meaning of these clauses are not uniformly clear. The prohibition of an established church is natural in the light of the ecclesiastical controversies of the colonial period; but the disability of clergymen while in the active discharge of their duties is peculiar, as Dr. David Caldwell was a member of the Congress which framed the Constitution and other clergymen did much for the Revolutionary cause. A similar provision in the constitution of Delaware suggests that the restriction was the result of general ideas rather than a particular grievance. The denial of the Protestant religion or the divine authority of the Old and New Testament as a disability is at least vague. Did it contemplate the establishment of a test oath? What was meant by the term Protestant religion?
The prohibition of an established church never raised any question, but the application of the other two clauses was sometimes a source of irritation. As the Constitution did not state when a minister should be considered in the discharge of his pastoral duties, the way was left open for a conflict between a political and an ecclesiastical interpretation thereof. In 1801 John Culpepper and William Taylor were expelled from the State Senate because of their ministerial activities; Culpepper then entered federal politics and was elected to Congress. In 1820 Rev. Josiah Crudup, Baptist, was found to be a "regular ordained minister," preaching the gospel, administering baptism, and performing the marriage ceremony, and it was therefore recommended that his seat in the Senate be vacated. Mr. Crudup's defense was that no Baptist minister was a pastor until he became the head of a congregation, and such he had never been, that he had never received money for his services, and that he had not performed any religious sacraments since his election. But the view prevailed that any ordained minister was in a pastoral function, and his seat was vacated. Like Culpepper, Mr. Crudup turned to federal politics, was elected to Congress in 1821 from the Eighth District, p146 and served one term. He was succeeded by Willie P. Mangum, but in 1825 he opposed Mangum's re-election. Mangum won by a vote of fifty-six, and is reported to have considered Crudup the most formidable opponent he had ever known.
The denial of religious ideas as a disability was never put into practice. Catholics, free thinkers, and Jews held offices of honor as well as Protestants. But there was prejudice against all non-Protestants, especially against non-Christians, and there were some attempts to use this prejudice for political purposes. A notable case was that of Joseph Henry, a Jew, who was elected to the House of Commons from Carteret County in 1808. The following year a resolution was presented that he was not entitled to a seat because he denied the divine authority of the New Testament. After a long debate, in which Mr. Henry made a speech that was widely circulated, the resolution was rejected. Thus toleration triumphed when it was pitted against persecution. But by 1835 disabilities based on religious conviction had become entirely ineffective, for in 1834, William Gaston, a Catholic, was elected to the Supreme Court. The contrast between the theory of the Constitution and political custom was apparent to all. It did much to spread a conviction that the Constitution was not perfect, and the revision of the thirty-second article was therefore undertaken.
The question of free negro suffrage was peculiar. Its origin is obscure, evidently due to that clause in the Constitution which gave all free men the right to vote for members in the House of Commons. Individual free negroes attained eminence in religious and industrial life. But by 1830 there was a movement to restrict the liberties of free men of color, and the question of denying them the suffrage was naturally injected into the movement for constitutional reform, although there was no distinct agitation of the matter.
By all odds the greatest issue in the movement for constitutional revision was that of local sectionalism and economic reform. The cleavage between the eastern and western counties, so apparent in the days of the Regulation, still existed. An irregular line, including the present eastern p147 boundary of Granville, and extending thence along the western boundaries of Wake, Harnett, Cumberland, and Scotland counties, divided the state into two factions. The counties to the east were more numerous, and as the Constitution apportioned representation equally, two representatives and one senator to each county, they had a majority in the legislature. This supremacy became unjust in the light of economic conditions. The average size of the western counties was greater than that of the eastern, their resources were larger, their development more rapid. Population, outlined in the following table, illustrates the inequality.
|West||Increase||Per Ct.||East||Increase||Per Ct.|
These figures show that at each decade there was a larger increase in population in the west than in the east until in 1830 the west surpassed the east. Moreover, between 1820 and 1830 there was a decline of population in three eastern counties. In defence the east pointed to its larger wealth, for its taxes were greater than those paid by the west.
However, if representation be viewed from the interests of the state at large, it was clearly unjust. According to the assessment of 1815 eight counties, eastern and western, (Gates, Columbus, Lenoir, Ashe, Haywood, Perquimans, Pasquotank, and Tyrrell) had a total land value less than Rowan, a large western county, or Halifax, a large eastern county; yet these eight counties chose sixteen representatives, Rowan and Halifax four each (boroughs included). By the assessment of 1833 thirty-three of the sixty-four counties contributed less than one‑third of the state's revenue; forty did not pay taxes enough to cover their cost to the state, yet they had a majority in the legislature. Indeed there were twenty-four counties whose aggregate expenses more than doubled their public taxes. There were twenty that did not p148 pay into the treasury enough to meet the expenses of their representatives in the legislature; twelve paid an aggregate state tax of $5,400, while the expenses of their representatives averaged $8,000 per annum. Population from this state-wide view showed similar results. In 1820 twelve small counties sent thirty-six members to the assembly; Rowan and Orange, two western counties, sent six, but the population of the two groups was approximately equal. In 1833 thirty-three counties, with little more than one‑third of the total population, sent ninety-nine members, but on the basis of white population they had larger representation than thirty-one counties with more than two‑thirds of the white population.
One remedy for this inequality was to increase the number of western representatives by dividing the large counties. But the east was opposed to any reduction of its political power, and the organization of new western counties was usually followed by an increase in the east. From 1776 to 1833 eighteen counties were organized in the west, while fifteen were formed in the east. This small gain of three counties was by no means strong enough to overthrow the sectional majority. As time passed the organization of new western counties became more and more difficult, because the territory available for corresponding counties in the east was gradually exhausted. Astuteness on the part of western leaders was always necessary to secure the organization of a new county. A favorite method to secure eastern votes was to name the new counties for eastern leaders; thus Burke, Caswell, Iredell, Ashe, Moore, and Macon were named for active eastern men, and Buncombe, Stanly, and Davie for deceased leaders of the east. How acute was the sectional hostility to new counties is illustrated by events in 1822 and 1823. A bill was introduced and passed to create the new County of Davidson during the session of 1822; the next year every eastern man who voted for it failed to be re-elected. Among these was Ex-Governor Miller, of Warren, who was defeated by Gen. M. T. Hawkins, on the ground that a new western county endangered the interests of the east and placed the Constitution of the state in jeopardy.
As the creation of new western counties was checked, the p149 only hope for a more equitable representation of the west lay in the revision of the Constitution by a convention. The agitation for reform is almost as old as statehood itself. Much of the literature relating to it has been lost; but the perspective of years outlines distinctly certain landmarks.
First of these was in 1787. Eleven years had passed since equal representation had been embodied in the State Constitution. The great question of ratifying the Federal Constitution was now before the people. On the legislature devolved the duty of summoning a convention to consider federal relations. In the Senate a group of members hoped to refer to the convention the question of local constitutional reform. Indeed they were able to carry a resolution for a joint committee to investigate the changes that were needed and to report to the convention, but the measure was lost in the Commons. The reforms specified were a change in the system of representation and less frequent sessions of the legislature. Later authorities state that members of the legislature, who had been members of the Convention of 1776 which framed the Constitution, with one exception favored the resolutions looking to reform and that their rejection was due to the representatives from the seven trans-montane counties that soon became a part of Tennessee. Was this a log-roll by which the far western counties were promised the aid of the east in the movement for separation in return for votes against reform? In spite of failure in the legislature, the reform proposition was brought up in the convention of 1788; again it was defeated, according to tradition, by the votes of the trans-montane counties.
No sooner was the issue of ratification of the Federal Constitution settled in 1789 than the question of reform again appointed. In 1790 a committee of investigation was appointed in the Commons, but there was so much lack of agreement among its members that no plan of action was recommended. At almost every session for a number of years there were resolutions and debates on reform. The sectional issue even influenced the location of the capital. The convention of 1788 authorized the General Assembly to select a permanent seat of government within •ten miles of the Hunter plantation in Wake p150 County. But the instruction was not carried out because the Cape Fear and western members favored Fayetteville. In 1790 a bill to carry out the instruction was carried in the Commons by the deciding vote of the Speaker, Stephen Cabarrus, an eastern man, but was rejected in the Senate by the casting vote of its Speaker, Wm. L. Lenoir, a western leader. The next session of the legislature was then ordered to meet at Newbern; there the eastern influences were strong enough to pass a bill locating the capital in Wake. Tradition says that the success of the east was due to the votes of the trans-montane counties; was this also a log-roll?
The controversy over the capital lends interest to an effort for reform in 1808, when Jesse A. Pearson of Rowan introduced the following resolution in the Senate;
"Whereas representation should bear an equal ratio with taxation and population, whereas frequent sessions are unnecessary and expensive, whereas public interest and commerce would be promoted by removal of the Seat of Government from Raleigh to Fayetteville, resolved that a law be made for calling a convention," etc.
This resolution in so far as it coupled removal of the capital with constitutional reform was no more than a threat, for it was not introduced until the last day of the session. It was laid on the table, but it forecasts the effort to unite the issues of a new capital and that of reform, which marked the agitation of 1832.
The next aggressive action was in 1811. John Reid, senator from Lincoln County, introduced comprehensive resolutions which provided for biennial sessions and elections, and the apportionment of representation in the Senate according to districts and in the House of Commons according to counties. The Senate sent a message to the House advising that the resolutions be printed, which was agreed to. Yet in spite of this auspicious opening and Mr. Reid's able argument, the Senate, on December 6th, rejected the resolutions by a large majority.
Five years later, in 1816, the cause of reform received its first able literary expression. The militia officers of Rutherford County petitioned the Senate on the constitutional question. p151 Their memorial was referred to a committee of which Archibald DeBow Murphey was chairman. Its report, written in the unmistakable style of Murphey, was a dignified statement of principles as well as needs.
Another effort toward reform was made in the Senate of 1819 by Duncan Cameron. For three days his resolutions, which called for the popular election of the governor and sheriffs, biennial sessions, revision of representation and the submission of the convention question to the people, were debated; by a vote of thirty-six nays to thirty-two yeas they were defeated. Similar resolutions introduced into the Commons by Mr. Mangum were also rejected. The following year John A. Cameron of Fayetteville submitted a resolution in the Commons for a convention, which was postponed indefinitely. Then in 1821 Charles Fisher of Salisbury introduced resolutions in the Commons that representation should be apportioned according to free white population and taxes; these were rejected by the large vote of eighty-one to forty-seven.
The agitation from 1819 to 1821 was very intense. A later authority says the whole state was convulsed from mountains to sea. Finding their efforts for reform of no avail, the leaders of the movement decided to appeal directly to the people. A caucus of western senators and representatives was held during the last days of the legislative session of 1822. A popular convention, to meet at Raleigh in the following November, was deemed the best way of crystallizing public sentiment. An election of delegates was recommended, and to conduct the campaign a general committee of correspondence was appointed, and the members of the legislature were authorized to appoint local committees in their respective counties. An address to the people was drawn up, of which 10,000 copies were ordered to be printed.
Twenty-four out of twenty-six counties appealed to responded by sending forty-seven delegates to Raleigh on November 10, 1823, just ten days before the meeting of the General Assembly. General Montford Stokes was elected president. The work of the convention was done by three committees; one which examined the condition of population and taxes, one which drafted amendments to the Constitution, p152 and one which formed a plan submitting the proposed reforms to the people. The reports of these committees reveal a cleavage among the leaders of the reform movement. In the committee on amendments the delegates from the extreme west, where there were few slaves, favored free white population as the basis of representation, while those from the central west, where slaves were more numerous, desired that federal numbers, whites and three‑fifths of the blacks, be made the basis. The plan of the central counties prevailed, the committee recommending that 4,000 federal population be made the unit of representation in the Commons and 10,000 in the Senate. Adopting federal numbers not only alienated the extreme west; it also robbed the convention of all claim to be a popular movement, for the committee on population and taxes showed that on the basis of federal numbers the body represented 272,431 people, 11,833 less than the unrepresented population; while on the basis of white population 233,333 were represented, a majority of 33,954. The same committee also found that the taxes of the represented counties were nearly $10,000 less than those of the unrepresented counties. Clearly, unless white population were adopted as the basis of representation, the convention itself was not a representative body. Moreover, its proposed adoption of federal numbers would be of little benefit to the extreme west; it would merely unite the central slave-holding counties and the east, and thus block all future efforts at reform. Yet the proposed amendments were adopted by the convention. According to the report of the committee on submitting reforms to the people, the issues were to be voted on at the next general election, when delegates should also be chosen for a second convention, on the basis of federal numbers.
After a week's session the convention adjourned. Its cause was undoubtedly a just one, but the cleavage between the extreme western and the central counties was fatal; also the resort to a second convention smacked too much of a revolution. Consequently there were no effective results. The General Assembly, which met two days after the convention adjourned, did nothing. The campaign for ratification and a second convention was a failure. Not enough delegates were elected to p153 organize a convention — even the approval of Thomas Jefferson, published in the papers of the time, had no effect.
During the next six years the convention agitation subsided. For this there were several reasons. One was undoubtedly the failure of the movement in 1822 and 1823. Another was the intense interest in national politics, notably the presidential campaigns of 1824 and 1828, and the nullification issue, also the excitement over certain state questions, notably the conduct of the banks and the policy adopted toward them. By 1830, however, forces were at work which revived the interest in constitutional reform. Western influence was strong enough in the legislature of 1830 to secure the election of Montford Stokes, prominent in the agitation of 1822‑23, as governor over Richard Dobbs Spaight, an eastern leader. Two years later David L. Swain, of Buncombe, was made governor and held office until 1836. Also a new set of leaders was rising to prominence. In the legislature of 1831 there were 101 new members, 27 in the Senate and 74 in the Commons. The burning of the capitol in the summer of 1831 also opened the way for obstruction to its rebuilding at Raleigh unless the convention question were referred to the people. The economic situation also caused protest. The census showed that the rank of North Carolina in population had declined from third among the states in 1790 to fourth in 1800, 1810 and 1820, and to fifth in 1830; also the western counties had by 1830 outstripped the east in population. A profound sense of depression, of laggardness in economic development, was widespread. The remedy seemed to be a more liberal policy of internal improvements on the part of the state, one that should bind together all sections by transportation facilities and so develop the latent economic resources. Yet in spite of popular demands for internal improvements and the recommendations of the Board of Internal Improvements nothing was done. The chief cause of inactivity was the intense sectional partisanship which prevented any united action in behalf of the state at large. Clearly some reform in representation, which would allay sectional strife, was necessary before North Carolina could take any forward step in industrial development.
David L. Swain
These general influences lend intelligibility and interest to p154 the last years of the agitation for reform. In 1830 resolutions in the Commons for a convention were, as usually, postponed. The Board of Internal Improvements also advised larger appropriations for its work but received no assistance. The next session the west attacked the reform problem in a new way. The capitol building at Raleigh burned in the summer of 1831. A movement was immediately started to block any appropriation for rebuilding unless concession on the convention question was made, and, in order to win the support of the Cape Fear counties, the west agreed to the removal of the capital from Raleigh to Fayetteville. The alignment of factions on this issue is well told in a letter of the time:
"There are five parties here. The largest (but it does not constitute a majority) is for rebuilding the capitol and is opposed to a convention in every form. This may be named the Eastern party. The next in point of magnitude is the Western party; they want a reconstruction of our constitution with respect to political power, and want no more, but will either keep the government at Raleigh or remove it to Fayetteville, as one or the other will favor their great end. The third in point of size is the Fayetteville party; their main object is removal, but they are willing also to go for a general convention. The two others are of about the same magnitude, the Northwestern and Southwestern parties. The former want a modification of the constitution, but are utterly opposed to a removal; the latter want removal but resist the alteration of the constitution."5
The first step of the coalition of the west and the Cape Fear faction was to defeat the appropriation for rebuilding at Raleigh. The debate, which lasted through December, 1831, into January, 1832, was mainly a series of arguments on the propriety of removal and a constitutional convention. Those opposed to the bill, who also favored removal and a convention, found their principal argument in the economic value of Fayetteville. Raleigh was but a country town without trade or industry; the legislators there in session received no influence that would remove provincialism and prejudice; as Fayetteville p155 was a commercial centre with a large trade, a removal of the capital to it would bring the members of the legislature into contact with commerce and give them an acquaintance with its advantages, would stimulate the cause of internal improvements and open a new and larger era in the development of the state's resources. However, the friends of rebuilding at Raleigh had much the stronger arguments; they pointed to the doubtful constitutionality of removal, the violation of public faith with the people of Raleigh who had paid to the state $62,000 for land lots, the uncertainty of navigation on the Cape Fear, the central location of Raleigh, and the expense of a convention. Although these facts enlisted the best talent of the legislature, the appropriation bill was defeated, losing in the Commons by three votes. Having prevented rebuilding at Raleigh, the western faction introduced a bill for a convention to revise the Constitution and consider the removal of the capital, but it was indefinitely postponed in the Commons, where introduced, by sixty-nine to fifty-six.
The following session, 1832‑33, the coalition of reform and removal failed. A joint committee on reform was appointed. An attempt was made in the Senate to have it consider removal, but it was defeated. The sight of the ruins of the old capitol and the doubt of the legality of sessions not within the city limits of Raleigh were powerful arguments for rebuilding; so the appropriation bill was carried. Seeing no hope for the success of the convention bill, the friends of reform decided to appeal to the people. A meeting was held on January 4, 1833. Its chairman was General Polk of Rowan. Among those present were some large-minded eastern men, viz.: William Gaston of Craven, David Outlaw of Beaufort, William H. Haywood of Wake. Resolutions were adopted that the sheriffs at the next election take the poll for and against a convention and report the vote to the legislature. A committee to frame an address to the people and committees of correspondence for the various counties were then appointed. Accordingly the vote on the convention issue was taken in thirty-one counties, the result being 30,000 for a convention and 1,000 against it. The returns were sent to the legislature by Governor Swain in a strong and effective message. A joint p156 committee on reform was appointed. A majority of its members were from the east, and they were able to force a compromise. The west sacrificed its superiority in numbers by granting that no county should be denied representation in the lower house on account of small population and that no large county should have more than two in the same house. The eastern members, on the other hand, conceded reform not by convention but by legislative initiative. This would throw the movement into the hands of the east, which controlled the legislature. Consequently the report of the committee was not acceptable to a majority of the western members, and it was rejected.
In the meantime the issue of internal improvements had become imperative. The need of better transportation facilities was apparent in all parts of the state. During 1832 and 1833 a number of railroad conventions were held and just before the session of 1833‑34, a convention representing forty-eight counties met in Raleigh. Resolutions were adopted which recommended for the east the connection of Edenton with the Dismal Swamp and of Beaufort Harbor with the Neuse River, and railroads from the Roanoke to South Carolina and from the mountains to the sea. A memorial embodying these plans was presented to the legislature by the convention, which appeared before the legislature in a body. Here was a measure that would benefit all sections of the state. It was referred to a joint committee of both houses. The Board of Internal Improvements also recommended some action. Nothing was done because of the clash of sectional interests. The session of the legislature, an unusually long one, ended with neither the mandate of the people concerning constitutional reform nor that on internal improvements being heeded.
A wave of indignation now swept over the state. The western members of the legislature held a meeting and appointed a committee to frame an address to the people. A large number of newspapers in the east criticised the lack of action on the part of the legislature. In the west revolution was threatened. Said the Carolina Watchman:
"If the General Assembly does not submit the inequalities p157 of our constitution to the people in some formal mode, we of the west are determined to go to work without the behest of that body. We admit the experiment is dangerous — if the people were less virtuous, it would be immensely so — but we think the spirit of your fathers which bore them through the trials of the Revolution is still sufficiently with us to secure us against the perils of faction. Mark it, my dear Sir, cost what it will the experiment will be made immediately after the rise of the next Assembly if some measure of reform does not pass."6
This threat of revolution, the change in the attitude of certain eastern leaders and newspapers, and the demand for a charter of a railroad from Raleigh to Wilmington, to which the west would consent only on condition that the convention question be referred to the people, were effective in the legislature of 1834‑35. A bill providing for a convention to consider specific reforms was submitted to the people for approval. As any change in representation was to be made on the basis of federal numbers, the measure was really a compromise in favor of the slaveholding counties of the east. Yet in the popular vote which was taken in April, 1835, all the eastern counties gave majorities against the convention bill, while all the western counties save Person showed majorities for it.
The vote cast was the largest in the history of the state up to that time, 48,377, and the majority for the convention was 5,165. At a second election delegates were chosen and the convention met on June 4, 1835.
The political and constitutional issues before the convention were undoubtedly the most important between the ratification of the Federal Constitution in 1789 and secession in 1861. The personnel of the convention was worthy of the task. Among the members, two from each county, were most of those then living who had achieved political distinction, and many of the rising generation who were to attain eminence before 1861. The venerable Nathaniel Macon, who had retired from public life in 1828, appeared as delegate from Warren p158 County, and was made presiding officer. From Warren also came Weldon N. Edwards, later secretary of the Secession Convention. From Craven were sent Judge Gaston, in personality and influence second to none, and Richard Dobbs Spaight. Halifax sent another member of the Supreme Court, Joseph J. Daniel, and an ex-governor, John Branch. Delegates from the east representing the rising generation were Asa Biggs, of Martin, Kenneth Rayner, of Hertford, and William B. Meares, of Sampson. Among the members from the west were Governor Swain, of Buncombe, Calvin Graves, of Caswell, David Barringer, of Cabarrus, John M. Morehead, of Guilford, Alfred Dockery, of Richmond, Charles Fisher, of Rowan — all just rising to influence — and the veteran politicians, Josiah Crudup, of Granville, and Meshack Franklin, of Surry.
On one reform only was the convention explicitly directed to take action, that of representation; it was authorized to consider at its will other questions, viz.: the abolition of free negro suffrage, disqualifying those holding federal office to accept office under the state government, equalizing the capitation tax on slaves and whites, new methods of appointing and removing militia officers and justices of the peace, compulsory viva voce voting in the election of officers of the legislature, the abolition of religious restrictions on office holding, provision for vacancies in the legislature caused by death or resignation of members, biennial legislative sessions, biennial term for governor, triennial election of secretary of state and attorney general, election of the governor by the people, and of the attorney general for a term of two years, providing a tribunal for impeachment, vacating the commissions of justices of the peace found guilty of crime, removal of judges for mental incapacity by a resolution of the legislature, preventing reduction of salaries of judges during their continuance in office, restriction of private legislation, disqualifying judges while in office from eligibility to other office except the Supreme Court, and providing a method for future amendments. The convention referred these matters to a committee of twenty-six for preliminary consideration and then debated in committee of the whole the clauses favorably p159 reported. The discussions were illuminating: they made clear the ideals of an old order then passing away and those of a new one just rising to ascendancy.
The first reform considered was that of borough representation, an excellent example of conflicting conceptions of political values. The defence of the institution was that simple justice required every distinct interest to have representation in the law-making body; as agriculture was represented through county representation, commerce and large property interests should receive recognition by borough representation. Moreover, there were special public problems, such as quarantine, inspection, and pilotage, which were said to demand representation. Governor Swain, a leader of the liberal forces, stated that the convention bill itself was carried by the vote of the boroughs and it was also conceded that many of the ablest legislators in the past had been representatives of boroughs. Although the apologists made the longer and abler argument, the silent, powerful sense of collective democracy was stronger, and after efforts at compromise by retaining representation for the eastern coast towns, the borough franchise was abolished. Thus the conception of class representation, a heritage of the British constitution, was discarded, and the American conception of direct popular representation gained strength in the fundamental law of North Carolina.
On the kindred question of abolishing county representation the debate was long and tedious. The mandate of the law authorizing the convention was that the Senate be reorganized to consist of not less than thirty-four nor more than fifty members elected by districts which should be laid off in proportion to taxation, and that the House of Commons should also be reorganized to consist of not less than 90 nor more than 120 members to be elected either by counties or districts, or both, according to federal numbers. The report of the committee favored 50 for the Senate and 120 for the House. It met bitter opposition from certain of the eastern leaders who feared the ultimate result would be western domination and extravagance in the matter of internal improvements. It was realized that the larger the number of representatives p160 the relatively greater would be the strength of the large western counties, doubtless giving the west a majority; although the apportionment of the senators according to proportion would give the east an immediate majority in the upper house, that majority might be lost in a later apportionment, and the west would thereby dominate in both houses. This might result in a tax system weighing heavily on the east and extravagant appropriations for railroads in the west. In fact it was admitted by western leaders that they favored railroad development with state aid. In reply Mr. Wilson of Perquimans exclaimed: "It turns out now that the west wants the power in their hands, not because Lincoln, Orange, etc., were unequally represented in the legislature, but because they want to construct railroads, canals, etc., to give them an outlet to the ocean. But what benefit would accrue to the West if they had an outlet? Very little, sir; for nine‑tenths of their land is exhausted, and not worth cultivation, contrasted with the hundreds and thousands of acres annually brought into market in the southwestern states."7 Likewise, Spaight, another eastern leader, regarded western plans for internal improvements as chimerical. "Such a scheme," he declared, "is not only idle and visionary, but perfectly impossible. In the first place, we have not active capital enough at our command to make it; but if we had, and it were made, and we were to concentrate all the produce of the State, it would not yield a profit sufficient to cover the expenses. Gentlemen will tell us about the great profits arising from Railroads. It is not transportation which yields this profit, but the money received from passengers."8 Undoubtedly the chief influence in settling the problem of representation was that of Judge Gaston. Coming from an eastern county, whose values were depreciating, he had participated in the agitation for internal improvements and was also magnanimous enough to realize the justice of giving the west a larger representation. By careful calculation he estimated that the proposed reform would give the east a majority in the Senate and the west a majority in the House of Commons. His influence p161 was sufficient to swing enough eastern members to vote with the west to carry the reform. It was also Gaston who suggested the provision that the first new apportionment of senators and representatives be made in 1842, the second in 1852, and others at intervals of twenty years.
The proposals for biennial sessions of the legislature and popular election of the governor did not receive so extended a debate. The opposition to change, however, was strong. Macon declared that annual sessions were essential to the preservation of democracy. "If you can put off the meeting of the Legislature for two years, you may extend the time to four, six, or ten years." Governor Branch also pointed out that annual sessions "were well calculated to keep in check Federal usurpations. The powers of the General Government are constantly increasing; and American liberty depends on the preservation of State Rights and State Powers."9 The educational value of annual elections, as a means for the interchange of ideas among the people and their information, was also pointed out. "In the Northern States," said Carson of Rutherford, "the people have the advantage of free schools and education is more universal. Here, we are not so generally educated, and therefore need all the benefits of knowledge derived from these and other sources. Collision of sentiments elicits the truth * * * and when the people know the truth, they have no other interest than to do right in public affairs."10 Above all was the English tradition of annual Parliaments as a check against oppression by other organs of the government.
As for popular election of the governor, such a measure was held up as demoralizing in its political results. Said Gaston: "Establish the scheme of an election of Governor by General Ticket, and we shall soon have our Grand Central Committees, District Committees, County Committees, and Captain's Company Committees, and all that vile machinery by which the freemen of the State are drilled into the slaves of factious Chieftains — by which they are deluded into the belief, that they are fighting for themselves, when in truth, p162 they are only quarrelling for the selfish interests of designing and unprincipled men. Establish this scheme, and you will greatly increase the violence and bitterness of faction. All the freemen of the State will be brought out, every two years into a general array against each other. The larger the multitude in which any excitement prevails, the more violent the passions become, by contagious sympathy. In our peaceable State heretofore, we have fortunately had nothing to bring out one half the State against the other except in the election of President."11
In spite of these objections, biennial sessions and popular election of the governor were adopted, and like viva voce voting by the legislature.
Among other reforms proposed none aroused more discussion than the abolition of free negro suffrage. Judge Daniel moved an amendment that those having landed property of •250 acres be allowed to vote for members of the House of Commons. "He was willing to leave the door open for all colored men of good character and industrious habits, as such would find no difficulty in obtaining the necessary qualifications." Arguments in favor of such compromise were the hardship of withdrawing a privilege long enjoyed, the injustice of taxation without representation, and the good results of such a policy in the West Indies during the French Revolution and the evils following its abandonment. In fact, defense of suffrage for the free negro with property qualifications enlisted some of the best talent of the convention — Judge Gaston, Judge Daniel, Governor Holmes, Charles Fisher, Judge Toomer, and Governor Branch. On the other hand the rising tide of pro-slavery sentiment opposed any concession to the free negroes. The views of the restrictionists were clearly based on race prejudice. They argued that the free negro could not be a citizen of North Carolina since the state constitution was the work of white men and that negro suffrage was a custom usurped after the Revolution. To allow the privilege to continue was held dangerous because the negro was by nature unfit for citizenship and elections were corrupted because the p163 negro vote could be bought. If the privilege continued, North Carolina might become a refuge for free negroes all over the South, since in no Southern state was suffrage permitted them. Moreover since "the moment the free mulatto obtains a little property and is a little favored by being admitted to vote," he will desire a white wife, Mr. Wilson, of Perquimans, moved that suffrage be denied to free negroes and mulattoes within four degrees. However, both compromises, property and blood qualification, were rejected and the right of suffrage was denied by the close vote of sixty-six to sixty-one. Attempt to reopen the question by Judge Gaston later in the session was defeated by nine votes.
By far the most lengthy debate was that on the thirty-second article of the Constitution, which excluded from office or place of trust in civil affairs those who denied the being of God, the truth of the Protestant religion, the divine authority of the Old or New Testament, and those who held religious principles incompatible with the freedom or safety of the state. The committee of twenty-six recommended the substitution of the word Christian for Protestant. At once great diversity of opinion was in evidence and the discussion lasted five days. At the extreme of conservatism, opposing any modification, was the anti-Catholic prejudice. Mr. Carson, of Burke, admitted that there were some honest Romanists who deserved protection, "but," he added, "in the protection of this one, we must take care we don't let in a thousand dishonest ones. The Roman Catholic is the very offspring of a despot. Our fathers knew what a Roman Catholic was, and were afraid, if they didn't put something of this sort in, they might hereafter have a harder struggle than they had just got out of."12 Mr. Smith, of Orange, likewise was opposed to any change, holding that the thirty-second article should be kept in reserve "as sleeping thunder to be called out only when necessary to defeat some deep laid scheme of ambition." The most impressive address was that of Judge Gaston. A Catholic, he had recently been elected a member of the Supreme Court in spite of the apparent discrimination against his faith. p164 Now came the defence of his acceptance of the honor. He pointed out the ineffectiveness of the thirty-second article in that it debarred those who denied the truth of Protestantism, which he had never done, and that Protestantism was divided into so many sects that it was impossible to find a universally accepted statement of its truth. All other phases of the issue he discussed in a manner that held the rapt attention of the convention for two days. Especially impressive were his concluding words: "If we rest the fabric of the Constitution upon prejudices, increasing and mutable prejudices, we build upon sand; but let us lay it on the broad and firm basis of natural right, equal justice and universal freedom — freedom as approved by the wise and sanctioned by the good and then we may hope that it shall stand against the storms of faction, violence and injustice, for then we shall have founded it upon a rock."13
At the opposite extreme from the radicals stood Macon, who declared that no human power had a right to prescribe any particular opinion as a test of fitness for office. "If a Hindoo were to come among us, and was fully qualified to discharge the duties of any office to which he might aspire, his religious belief would not constitute any objection, in his opinion, why he should be debarred."14 The votes on the proposed amendment illustrate the divergency of opinion. Mr. Edwards proposed that all religious tests as qualifications for office are incompatible with free government; it was defeated by a vote of eighty-seven to thirty-six. Another member then moved that no person who should deny the being of God should be capable of holding office; it was also defeated by eighty-two to forty-two. Proposition of a similar nature submitted by Holmes and Daniel were also rejected. Evidently the dominant sentiment of the convention favored some constitutional recognition of Christianity, and in the end the amendment introduced by the committee of twenty-six was adopted, which substituted the word Christian for Protestant, the vote standing seventy-four to fifty-two.
Other amendments adopted by the convention were the reduction p165 of the term of the attorney general from life or good behavior to four years, biennial election of treasurer and secretary of state, the election of militia officers by general law instead of by the legislature, voting viva voce in elections of officers by the legislature; equalization of the poll tax, the same to be levied on free males between twenty-one and forty-five years and all slaves from twelve to fifty; exclusion from office of those holding federal offices and also the exclusion of all office holders from the legislature; restrictions on private legislation by placing divorce, alimony, and legitimization of children under general law, likewise the restoration of citizenship to those convicted of crime; and forbidding the enactment of any private law unless thirty days' notice of application for the same shall have been given. Impeachment by the House of Commons and trial by the Senate were likewise provided for. Amendment of the Constitution was likewise provided for, either by a convention, called by a two‑thirds vote of the legislature, or by legislative enactment, the proposed amendment to be approved by three‑fifths of the legislature which initiated it, two‑thirds of the succeeding legislature, and final ratification by the majority of people. The form of the Constitution was also altered; it was now divided into articles and sections, instead of the continuous forty-six sections of the original.
The convention adjourned on July 11th. Its work was submitted to the people and was ratified by a majority of 5,165. The convention marks an epoch in the development of governmental institutions in North Carolina. It not only made government more democratic, but it also did much to remove the heritage of English conceptions of the basis of government. It lessened but did not abolish sectional prejudice. Undoubtedly a more liberal epoch opened before the state. Questions of economic and social importance now had a better chance. At the same time there was a new alignment of political parties taking place and public questions tended to have a party rather than a sectional interest.
1 Proceedings and Debates of the Convention of North Carolina, p334.
2 Address to the Freemen of North Carolina, etc., p8.
3 Proceedings and Debates, pp34‑35.
4 Ibid., 36.
5 Ashe, James Paton (N. C. Hist. Commission).
6 Raleigh Register, July 29, 1834.
7 Proceedings and Debates, p99.
8 Ibid., 123.
9 Ibid., p165.
10 Ibid., p185.
11 Ibid., p338.
12 Ibid., p242.
13 Ibid., p305.
14 Ibid., p246.
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