ADDRESS OF THE CENTRAL EXECUTIVE COMMITTEE. 
 
 *« 
 
 j{ To ilie People of North Carolina : 
 
 The 'Central Executive Committee of 
 
 j! the 'Democratic-Conservative Party feel 
 authorized and called upon to address 
 
 j! the people at this time, upon matters of 
 grave public concern, and they venture 
 to trust that what they say will receive 
 the candid consideration of every citizen. 
 The Legislature at its late session, made 
 provision by which to enable the people of 
 the State on the first Thursday in August 
 next, by popular vote, to call a Conven- 
 tion and elect delegates to the same, for 
 the purpose of amending the State Con- 
 stitution. The propriety and wisdom of 
 this action cannot be seriously questioned 
 when we consider the causes that gave 
 rise to it. . 
 
 The defects in the present Constitution, 
 are so many and so manifest, that almost 
 every person of ordinary intelligence, 
 without reference to party affiliations, 
 concedes that it needs to be materially 
 altered and amended. 
 
 The organic law of the State should be 
 so plain, precise, harmonious and logical 
 in its form and terms as that the plainest 
 mind may understand it, and as to leave 
 as little as possible to inference and legis- 
 lative and judicial construction. It is in- 
 tended and ought to be the bulwark of 
 the peoples' rights and liberties. To the 
 extent, that any of its provisions are left 
 to inference or constructions, to that ex- 
 tent are the rights of the people and often 
 their most valuable rights, left to the 
 whim andcaprcice of their Executive, Judi- 
 cial aud Legislative officers — moved some- 
 times by the voice and influence of party 
 I zeal and strife, at others, by corrupt con- 
 siderations, and yet others by ignorance 
 and stupidity. » 
 
 Our present Constitution is flagrantly 
 liable to such objections ; it is loose, illogi- 
 cal, contradictory and absurd in many of 
 its most material provisions, so much so, 
 that a wise and learned lawyer has said of 
 it upon his sworn opinion, that it " is a 
 medley of confusons and contradictions. " 
 
 The compass of this address will not allow 
 us to cite but one or two illustrations of the 
 truth of what we say. 
 
 The Constitution requires in one section 
 that the Legislature shall provide by ade- 
 quate taxation for the payment of the in- 
 terest on the public debt and the debt 
 itself. In another section it provides that 
 the capitation tax shall not exceed two 
 dollars on the head for State and county 
 purposes, and that the tax on three hun- 
 dred dollars worth of property shall not 
 exceed the tax on the head. If these 
 provisions are to be taken according to 
 their terms and any reasonable construc- 
 tion, an impossibility is required, because 
 at such rates of taxation, the whole prop- 
 erty of the State, together with the capi- 
 tation tax, is not sufficient to raise reve- 
 nue sufficient to pay the interest of the 
 public debt recognized by the very Con- 
 vention that framed the Constitution, to 
 say nothing of the ordinary expenses of 
 government. 
 
 Because of this absurdity, our Supreme 
 Court have held that the last provision 
 above mentioned did not apply to the 
 debt of the State as it existed at the adop- 
 tion of the Constitution: The Court was 
 obliged to make some decision ; they made 
 this, and thus virtually made one of the 
 most important provisions in the Consti- 
 tution, which turns the Legislature loose 
 on the people. 
 
 Another section provides, that "the 
 Superior Courts of the State shall be at all 
 times open for the transaction of all busi- 
 ness within their jurisdiction, except the 
 trial of issues of fact rearriring a jury. 
 Another section provides ror twelve Su- 
 perior Court Judges, each of them for a 
 circuit embracing about eight counties, — 
 so that it is physically impossible to keep 
 the courts open, unless the Judge shall 
 have deputies, an unheard of thing in all 
 systems of judicature, and no provision is 
 made for such deputies. 
 
 This absurdity had to be met ; and the 
 Supreme Court was driven to a construe- 
 
 1 
 
♦ tion, which virtually strikes out a material 
 provision of the Constitution and one that 
 lies at the root of our present judicial 
 system. While the Superior Courts are 
 required by the Constitution to be open 
 at all times for all business, except the trial 
 of issues of fact by a jury, an act of the 
 Legislature providing that certain busi- 
 ness, which is really the larger and more 
 important part of the business of the Su- 
 perior Courts, shall be transacted only at 
 the semi-annual terms, is held by our Su- 
 preme Court to be valid and to harmonize 
 with the Constitution. 
 
 These are but examples of the con- 
 tradictions and absurdities that abound 
 v^ in the Constitution. So great are the 
 difficulties that arise in the practi- 
 cal working of the judicial system in- 
 augurated under the Constitution that it is 
 not surprising that there is to be found in 
 the recent decision of the Supreme Court, 
 a distinct recognition of the necessity of 
 "judicial legislation" — a doctrine hitherto 
 unheard of in the jurisprudence of the 
 State, and one that seems to us at variance 
 with the' theory of republican government 
 in which the functions of the Executive, 
 Judicial and Legislative departments are 
 supposed to be distinct and separate. 
 
 It is not three years since the new con- 
 stitution went into operation, yet many 
 suits have already been brought and prose- 
 cuted through the several courts,with much 
 expense, to ascertain the rights of the citi- 
 zen under its conflicting provisions ; and 
 we have seen the Supreme Court, in several 
 instances, compelled virtually to make sec- 
 tions of the Constitution, in order to recon- 
 cile irreconcilable provisions. Whatever 
 may be the character and learning of the 
 judiciary, it is dangerous in the extreme, 
 that the most valuable rights of the citi- 
 zen should depend upon an organic law, 
 so uncertain and conflicting in its terms as 
 that five men must have the power by con- 
 structionso to change and amend it. This 
 objection alone is sufficient to warrant the 
 prompt action of the people. The reports 
 of the Supreme Court are accessible to all, 
 and fully sustain what we have said on 
 this subject. 
 
 The Constitution has completely over- 
 turned and abolished our old system of 
 jurisprudence, and introduced a new one, 
 in no sense adapted to the wants, habij» 
 tastes, convenience or economy of our peo- 
 
 ple, and it may be said of it most truly, 
 that it is loose, uncertain and illogical, giv- 
 ing rise to interminable litigation and end- 
 less .judicial legislation. Fully one-third 
 of the cases that go before the Supreme 
 Court go there upon questions of practice 
 and construction, growing out of the 
 " Code," and which bring justice and sat- 
 isfaction to nobody. This is not only our 
 experience, but it is the experience of New 
 York and other States where it prevails. 
 
 It may be further suid of it, that it is 
 corrupting in its tendencies to the Bench, 
 the Bar and the officers of Court. Under it, 
 much of # the business is done privately at 
 chambers and in the clerk's office in the 
 absence of opposing parties and counsel — 
 the amplest opportunity is afforded for cor- 
 rupting the Judges, the officers of Court 
 and counsel^ and our short experience har- 
 monizes with that in other States under 
 " the Code," and proves the truth and 
 force of this objection. 
 y The township system in each county is 
 exceedingly cumbersome and expensive, 
 and quite as complicated, and gives rise to 
 great confusion and expensive litigation. 
 A great number of officers are necessary, 
 and these must be paid reasonable com- 
 pensation, else the county machinery must 
 cease to work and thus give rise to intermin- 
 able and intolerable confusion. This sys- 
 tem does not suit the necessities and wants 
 of our people — it is not needed by them, 
 however well it may be adapted to a dense- 
 ly populated and wealthy country like 
 New England. 
 
 * The provisions of the Constitution in 
 reference to raising revenue and taxation 
 are in the most conflicting and confused 
 condition. Already they have given rise 
 to the most serious and expensive litiga- 
 tion, and will continue to do so if not 
 amended and reformed. Even the de- 
 cisions made by the Court on these sub- 
 jects are often unsatisfactory — the judges 
 differing widely in* their opinions from 
 each oth^r. 
 
 There are other serious objections that 
 we need not now" point out, but 
 which, are worthy the most serious 
 consideration of every citizen of the State, 
 the remedy for all which is in and through 
 a Convention of true-hearted native North 
 Carohnians. Our Constitution would not 
 be what it is now if our own people had 
 framed it. It is the handiwork, in a great 
 
measure, of ignorant, unprincipled adven- 
 turers, who had not the inclination to con- 
 sult the wants, tastes, and necessities of 
 the people, nor the capacity to put together 
 disjointed parts, and fragments taken 
 from other State Constitutions. It is the 
 shame of every North Carolinian, white 
 and black, that adventurers and strangers, 
 feeling no interest in us, have made our Con- 
 stitution, and such an absurdity as it is ! 
 However we may differ upon questions of 
 politics, let the good and true of all parties 
 and colors stand together as North Caroli- 
 nians to make a Constitution by and 
 through a Convention of true-hearted 
 North Carolinians, and such a one as will 
 be worthy the descendents of a noble an- 
 cestry. 
 
 V The method adopted for calling the 
 Convention is eminently proper — indeed, 
 we undertake to say that it is the only one 
 that fully harmonizes with the great dem- 
 ocratic principle underlying American 
 government — the right of the people to 
 rule, and especially to make, amend and 
 control their organic lawTjThe method 
 adopted is founded upon fne great princi- 
 ple of popular government common to all 
 the States of the Union, and is in perfect 
 harmony with every provision, as well as 
 the spirit of our present State Constitution. 
 There is no provision in the Constitution 
 which, in terms or by any reasonable im- 
 plication in the slightest degree, abridges 
 or impairs the right of' the people of the 
 State to alter or amend it, or call a Con- 
 vention for that purpose. There is no 
 word of limitation on their power in any 
 of these respects, and although it was not 
 necessary that they should do so, they 
 have been careful to provide in terms 
 their purpose not to part with such pow- 
 ers ; for it is provided in our Bill of 
 Rights in these words : 
 
 " Sec. 2. That all political power is vested 
 in and derived from the people; all govern- 
 ment, of right originates from the people, is 
 founded upon their will only, and is insti- 
 tuted solely for the good of the whole." 
 
 Sec. 3. That the people of this State have 
 the inherent, sole and, exclusive right of regu- 
 lating the internal government and police 
 thereof and of altering and abolishing their 
 constitution and form of government, when- 
 ever it may be necessary to their safety and 
 happiness; but every such right should be 
 exercised in pursuance of law consistently 
 
 with the constitution of the United States." 
 Sec. 37. This enumeration of rights shall 
 not be construed to impair or deny others, 
 retained by the people ; and all powers, not 
 hevein delegated, remain with the people." 
 V' The only limitation in the Constitution 
 in reference to calling a Convention is im- 
 posed on the Legislature — that body shall 
 not call a « onvention unless by the con- 
 currence of two-thirds of the votes of all its 
 members — but that body may in the ordi- 
 nary way of legislation, provide means by 
 and through which the people may, at any 
 time, call a Convention ; the Legislature 
 has such power by the whole tenor and 
 spirit of the Constitution as well as by the 
 express terms quoted abover'jfThe people 
 may do what the Legislature cannot — the 
 people limited the powers qf the Legislature 
 about calling a Convention — they did not 
 undertake to limit themselves, and it may 
 well be questioned whether, if they wished, 
 they could do so, in such way as to bind 
 the present generation, much less any suc- 
 ceeding one. -But in addition to the plain 
 meaning of the Constitution and the grand 
 principle of American government, under- 
 lying it, to which we have adverted, the 
 people of North Carolina have, time after 
 time, sanctioned such a method of calling 
 a Convention — they have by their 'practice 
 not only recognized the doctrine above 
 mentioned, but have acted upon it and 
 created precedents that have been acted 
 upon in most, if not all, the States of the 
 Union. 
 
 It is sometimes said that in 1861 the 
 Legislature passed a similar Convention 
 act by a two-thirds vote of the whole Leg- 
 islature — but that was then done out of 
 abundant caution and not for the purpose 
 of amending the Constitution, and was the 
 only instance of such action, and such a 
 vote was then unnecessary. 
 
 The plan adopted is so manifestly in 
 accordance with every principle of the 
 Constitution and the doctrines of popular 
 government, that we can scarcely credit 
 the sincerity of those who suggest the con- 
 trary. 
 
 y The act providing for calling a Conven- 
 tion, wisely- provides that it, if called, 
 shall not have power to interfere with the 
 Homestead provision of the present Con- 
 stitution, nor with the political and civil 
 rights of the colored people, nor with the 
 provision for amechanic's and laborer's lien: 
 
This expression in favor of the colored 
 people, ought to satisfy them tlrat there is 
 no purpose to disturb their rights, but it 
 may be as well for them to understand, 
 if they do not, that' their political and 
 civil rights are established by the Consti- 
 tution of the United States, and the pro- 
 posed Convention would have no power 
 to disturb them. 
 
 There can be no reasonable objection to 
 a laborer's lein — he is entitled to it upon 
 every principle ( of good government as 
 well as the spirit of the scriptural maxim, 
 " the laborer is worthy of his hire. " 
 
 The propriety and necessity of a Home- 
 stead for every family in the land, is rapid- 
 ly becoming the settled policy of the 
 American people as well as the people of 
 this State. It is wise, just and humane, 
 and rests not only on these grounds, but 
 on the further grouryi of sound public pol- 
 icy. The State and society have a direct 
 interest in the proper rearing and culture 
 of every child within its lsorders ; it is 
 matter of high moment that every child 
 shall have a home, to the end, he may not 
 become a wanderer, a beggar and often a 
 vagabond and criminal. Every family 
 should have a home — it gives dignity and 
 fixedness to citizenship and stimulates 
 parents and children to honest and honor- 
 able efforts to educate, elevate and fit them- 
 selves for society. This humane policy has 
 the sanction of the great mass of the people 
 and it is fixed not only in the Constitution, 
 but by a solemn decision of our Supreme 
 Court, which is binding as a high judicial 
 precedent on all future courts and judges. 
 V It is worth while here to bring to the 
 attention of the people the fact that wick- 
 ed and designing factionists in this State 
 and political demagogues out of it. for the 
 purpose of securing and promoting their 
 personal and political ascendency have 
 been and are now working to produce the 
 impression, here and elsewhere, and espe- 
 cially among the people of the Northern 
 States, that the great mass of our. white 
 people are hostile to the negro race and 
 the Federal government, and desire to 
 overthrow the latter — they persistently 
 make such false and scandalous represen- 
 tations and undertake, we regret to say 
 with some success, to sustain their allega- 
 tions by falsely attributing to political 
 motives every crime and outrage perpetra- 
 te^ in fuv,™*, and hv persons in disguise? 
 
 Such offences they greatly magnify in 
 number and character, while they make no 
 diligent or reasonable efforts to bring the 
 offenders to justice, although they and 
 their friends for the most part, control the 
 whole machinery of government whereby 
 to bring offenders to merited punishment. 
 Indeed, there is much reason to believe 
 that in many instances, they have directly 
 or indirectly, procured the perpetration of 
 such outrages in order to stir up civil 
 strife to serve political purposes. In re- 
 peated instances it has been made to ap- 
 pear by positive proof, that their political 
 associates, black and white, have perpetra- 
 ted such offences. And facts and circum- 
 stances within our knowledge leave no 
 doubt on our minds, that these desparate 
 political adventurers have, by preconcert, 
 arranged to bring upon the people the 
 calamity of Federal military rule and a' 
 suspension of the privilege of the writ 
 of habeas corpus, oh purpose to pro- 
 duce terror among the people, and 
 thus deter them from suppressing 
 through the ballot ; box in Au- ' 
 gUst next, the radical misrule, extrava- 
 gance, oppression and intolerable taxa- 
 tion which have blighted the remaining 
 prospects of their future prosperity. The 
 initiatory steps have been taken. They need 
 a pretext for such military interference, 
 and hope to ' create a sufficient one by 
 stimulating crime and outrage, and then 
 publishing throughout the country, the 
 most alarming, extravagant and exciting 
 accounts of the same, and asserting the 
 pretended inability of thecourts to bring 
 offenders to justice. This work has been 
 begun already, and every radical official, 
 both State and Federal, who will consent' to 
 lend himself to so base a purpose, will con- 
 tribute his effort in that respect. Already 
 we find officers in the Internal Revenue 
 service as well as State officers, making 
 reports of the most extravagant char- 
 acter, of crimes and outrages and their 
 inability to execute their offices without 
 the aid of military force. The manifest 
 purpose of all this is to prepare the pre- 
 text for inaugurating a reign of military 
 rule and terror and by such means thwart 
 and stifle the popular will. They must 
 have a pretext— they can in no other way 
 create one. The imputatioits made by 
 the Radical leaders above referred to, 
 against the white people, — that they are 
 
hostile to the colored race and the federal 
 government, and that they, or considerable 
 numbers of them, endorse or connive at 
 crime and outrage, we know to be shame- 
 fully and wickedly false and groundless— 
 nevertheless they are made and for the 
 sinister purposes already indicated. 
 
 We sincerely trust the people of all 
 classes and parties everywhere will disap- 
 point their hopes — that peace and good 
 order will prevail in every section of the 
 State. Crime of all kinds is wrong — to I e 
 deprecated and denounced, and its authors 
 punished according to the laws of the land 
 but crime perpetrated under circumstances 
 of terror and by persons in disguise is 
 doubly to be condemned, and it is the im- 
 perative-, duty of every good man to be 
 specially active in bringing such oifcnders 
 to justice; and punishment — and particu- 
 larly at this time, let every one feel called 
 upon to, be careful to see that such offen- 
 ders are brought before the Courts, to the 
 end they may be punished, and further, 
 that the country may see who they are. 
 If the Courts and their officers will not do 
 their duty vigilantly, let every citizen 
 trouble himself to expose every such re- 
 fusal or neglect of duty. We are confi- 
 dent that the Courts and prosecuting 
 officers have not made any active or reason- 
 
 able effort to ascertain secret offenders. 
 Let them double their diligence, and 
 where they are incompetent, let special 
 ones be employed. Notwithstanding the 
 clamor raised just before the last election, 
 and the pretended military effort to bring 
 alleged offenders to justice, not one, so far 
 as we have learned, has been brought be- 
 fore the Courts. The Governor took and 
 has taken no steps to order Courts of Oyer 
 and Terminer, and the pretended zeal of 
 executive and judicial officers in behalf ot 
 law and order and the weak and helpless, 
 passed off with the excitement of the elec- 
 tion. 
 
 K?e trust the ppople will carefully ab- 
 stain from all violence and make extraor- 
 dinary effort to preserve perfect peace,, or- 
 der and harmony, while they make a 
 mighty effort to remove the curse and 
 blast that now darken their hopes and de- 
 stroy their substance. 
 
 Thomas Bragg, Chairman, 
 
 A. S. Merrimon, 
 
 M. A. Bledsoe, 
 
 J. Q. DeCarteret, 
 
 J. H. Moore, 
 
 C. M. Busbee, 
 
 J. J. LrrciiFORD, 
 
 R. H. Battle. 
 
CONSTITUTIONALITY OF THE CONVENTION ACT. 
 
 OPINION OF HON. B. F. MOORE. 
 
 Bdbert P. Waring, Esq.: 
 
 I have received yours requesting my 
 opinion upon the queslion, whether the 
 people can have the rightful power to as- 
 semble in convention and alter their con- 
 stitution, unless such convention shall be 
 called (according to the provisions in 
 article XIII ot the state constitution) by 
 the general assembly, and then " by the 
 concurrence of two-thirds of all the mem- 
 bers of each house ?" 
 
 My opinion upon the same point has 
 been requested by many others of my fel 
 low-citizens. 
 
 Under such circumstances, and in view 
 of a matter so deeply involving the great 
 political rights of the people, I feel that it 
 would be a default of duty should I with- 
 hold any information I may possess upon 
 a subject so interesting to the public. 
 
 The conclusions which I have formed 
 upon this subject result from an unde- 
 viating "recurrence" to the fundamental 
 "principles" of our government, which 
 place all power in the people of the state, 
 subject only to those restraints pat upon 
 that power by the constitution and laws 
 of the United States. 
 
 Under the present form of our state 
 government I hold, with the "Declaration 
 of Rights," " that all political power is 
 vested in and derived from the people ;" 
 that " all government, of right, originates 
 from the people, and is founded upon their 
 will only ;" that " the people of the state 
 have the inherent, sole, and exclusive right 
 of regulating the internal government and 
 police thereof, and of altering and abol- 
 ishing their constitution and form of gov- 
 ernment ;" and that " every such right 
 should be exercised in pursuance of law, 
 and consistently with the constitution of 
 the United States." 
 
 Acknowledging the existence of these 
 fundamental principles, in the fullest lati- 
 
 tude consistent with their reasonable con- 
 struction, I shall proceed to apply them 
 in solving the question under considera- 
 tion. 
 
 All laws, made for the government of 
 the people of the state, are properly di- 
 vided into two great classes : 1. Those 
 which are made by the people in their pri- 
 mary capacity, while acting for themselves 
 through unrestrained agents, and repre- 
 senting the people as fully as the people 
 could represent themselves were they per- 
 sonally present and acting. Such of this 
 class of laws as are not subjected to repeal 
 or modification by the general assembly 
 constitute what is termed the constitution, 
 or fixed laws, that is, laws fixed until they 
 are annulled or modified by a power as 
 supreme as the power which made them, 
 namely, the people themselves, acting in 
 their primary capacity. 2. Those laws 
 which are made by the people, through 
 their representatives acting for them under, 
 and in subordination to, the constitution 
 or fixed laws ; these constitute what are 
 usually termed laws. They are repealable 
 by the same authority which made them ; 
 and it is out of the power of that author- 
 ity to remove such laws beyond the reach 
 of that authority, because the same power 
 which makes a law can unmake it. 
 
 The constitution or fixed law, is a letter 
 both of authority and command from 
 the people to their agents — the members 
 of the general assembly. By this letter 
 they are empowered and instructed in their 
 action. This letter is ever-speaking and 
 addressing itself to the agents appointed 
 by and under its provisions ; and, under 
 the theory of our state government, is at 
 all times proclaiming the will of the 
 people, — not the people only who made it 
 years or ages bygone, but the existing pres- 
 ent people. It is this fundamental princi- 
 ple which inspires the fixed law with life 
 
— -present life. If I am asked what reason 
 J have for this assertion, I answer in the 
 language of section 3, of the Declaration 
 of Rights, " that the people of the state 
 have the inherent, sole, and exclusive 
 right to alter and abolish their constitu- 
 tion and form of government." And I 
 say, that though this constitution was 
 made by a generation of people who ex- 
 isted when it was made, and that genera- 
 tion has passed away and another succeed- 
 ed, still the constitution has been neither 
 abolished nor altered ; therefore, the pre- 
 sumption exists, copclusively, that it is as 
 much the will of the present generation 
 of the people as it was of that generation 
 of people who made it. Every rational 
 mind assents to the correctness of this 
 conclusion. But how can this be true, if 
 a majority of the present people cannot 
 assemble and alter a constitution which a 
 majority of the people of a past genera- 
 tion assembled and made ? Is not the es- 
 tablishment of a constitution a political 
 power, and is not all such p^wer vested 
 as fully in the present generation as it was 
 in the past ? Is not the will of the people 
 as sacred now as it' was a year ago ? 
 
 To this it is answered, that this propos- 
 ition is theoretically true, and cannot be 
 questioned in the abstract, but that those 
 people, who, in a generation bygone, as- 
 serted these golden truths as the rights of 
 man and gifts of God, in order to protect 
 the fixed law, which they then made, and 
 these very rights and gifts, from the rash 
 hands of all future generations of the 
 people, inserted in that very fixed law a 
 provision, whereby were cut off and pro- 
 hibited all means for ascertaining whether 
 " the people of the state would exercise 
 their sole, exclusive and inherent right of 
 altering their constitution, " and thus en 
 joy the benefit of these sacred rights^ 
 They made it (says this answer,) a part of 
 the fixed law, that "710 canvention of the 
 people shall be called by the general assem- 
 bly unless by the concurrence of two-thirds 
 of all the members of each house of the 
 general assembly.'''' Therefore, (concludes 
 this answer,) it is clear that the voice of 
 the people is forever hushed, and they are 
 forbidden to exercise their inherent right, 
 unless eighty members of One house, con- 
 sisting of 120 persons, and thirty-four 
 members of the other house consisting' of 
 50 persons, shall allow them — the people— 
 
 the privilege of altering the law fixed by 
 a bygone age of men. 
 
 It is equally manifest, and is an unde- 
 niable sequence of this doctrine, that, if a 
 convention should ever become as much 
 pleased with its fixed laws, as was Lycur- 
 gus with the institutions framed by him 
 for Sparta, such convention would abso- 
 lutely prohibit all changes in their self es- 
 teemed work.* Perhaps, to diminish the 
 foice of the absurd conflict with the pro- 
 claimed rights of the people, which such a 
 provision would present, they might pro- 
 vide that no convention should be called 
 unless nine tenths of all the members of 
 each house should concur. Or, if the ques- 
 tion were left to a vote of the people, they 
 might provide, that there should be no 
 election of delegates, unless nine tenths of 
 the registered voters should assent thereto. 
 Each of such provisions is defended by 
 those, who maintain, that no convention 
 can be called otherwise than by the mode 
 specified in article 13 of the constitution. 
 All such provisions are alike in principle, 
 though different in words ; and are equal- 
 ly at variance with the great political 
 truth that the people possess the inherent 
 right to alter their constitution. 
 
 I can see no end to the intolerable griev- 
 ances, which may continually spring up 
 in new states with small populations, 
 forming their first constitutions with such 
 restraints imposed on the will of a majori- 
 ty of the people; and equally grievous 
 even to densely populated states, must 
 be such restraints in the progresses of the 
 age. 
 
 With all proper respect for the opinions 
 of those who may differ from mine, I am 
 constrained to say, that the absurdities 
 involved in such a construction with the 
 '.'uamntees of a government according to 
 the popular will, so often repeated in the 
 constitution, forbid me to entertain a 
 
 *Lycurgus, ruler of Sparta, charmed 
 with the beauty and greatness of his political 
 establishment, became desirous to make it im- 
 mortal and deliver it down to the latest times. 
 For this purpose he assembled the people and 
 took an oath of all the officers and citizens, 
 that they would not alter, but would abide by 
 the existing establishment till he should return 
 from Delphi, whither he was,then going, with 
 the secret purpose of never returning. He 
 never returned, but the citizens disregarded 
 the unjust imposition No sane man ever 
 questioned their right to do so. 
 
doubt, that the privilege of the people to 
 exercise their inherent right of self govern- 
 ment remains unaffected by the first sec- 
 tion of article 13 of the state constitution. 
 I do not intend to assert that this section 
 of that article is inoperative. I shall turn 
 to its consideration presently. But I free- 
 ly declare it as my opinion, deliberately 
 and much considered, that even if that ar- 
 ticle had been so worded as to remove all 
 cavil as to its meaning, by declaring in 
 express words, that " the people should 
 not assemble in convention otherwise than as 
 provided in that section," the provision 
 would have been destitute of all obliga- 
 tion. For, I maintain, as a cardinal prin- 
 ciple in the broad self government by uni- 
 versal suffrage, where each provision in 
 the fixed law owes its original existence 
 to a majority, that every such provision 
 must depend, for the continuation of its 
 existence, upon the same will which ere 
 ated it, namely the will of the present 
 people, that that will cannot be crushed 
 or impaired in its strength by the past 
 creating will ; that the work of the first 
 will is as much subject to change 
 by the second will, as it was to 
 be moulded by the first will ; 
 and that every device, by the creating 
 will, to dethrone the future will of the 
 people, or smother its existence, or com- 
 mand it into silence, is a fraud on the in- 
 herent right of the people to have their 
 will, and to live under a government of 
 their will. To hold otherwise, is to main- 
 tain that the people may be defrauded of 
 the right of self-government, under the 
 pretence of protecting constitutions from 
 changes by the popular will ! ! ! 
 
 It has been suggested that the conven- 
 tion of 1868 has conferred on the legisla- 
 ture no express power to provide ways 
 and means for ascertaining the will of the 
 people to have a convention. If that be 
 so, still, if the people have an inlierent 
 right to a privilege, guaranteed by the con- 
 stitution, there must be some mode of im- 
 parting practical life to that privilege and 
 securing its fruits. In every code of laws, 
 where a right is proclaimed aud no special 
 remedy is provided, one is allowed by im- 
 plication, and that one is selected which 
 is most adaptable to secure the privilege. 
 Every person concedes that the general 
 assembly is the fittest, and, indeed, the 
 only fit, instrument for that purpose. In 
 
 all cases of similar defects (if defects they 
 may be called) in the constitutions of the 
 states, the duty of making provision to 
 ascertain the popular will has been as- 
 sumed by that branch of national power, 
 without question, in this state, of its au- 
 thority in such cases, until recently. Cer- 
 tainly, if in the absence of express provis- 
 ion, there be any authority for such pur- 
 pose, none can be so appropriate as the 
 legislative agents of the people themselves. 
 This power of the legislature, to provide 
 the means whereby their will may be 
 known, has been recognized in this state 
 as well by the legislature of 1834, as by 
 the' convention which assembled in 1835 
 and formed what is now article 13 of the 
 present constitution. I need no higher 
 authority for the existence of such power, 
 as it stood undisputed and unquestioned 
 by such jurists as Judges Daniel, Toomer 
 and Seawell, than the openly declared 
 opinion, in their piesence, of William 
 Gaston. In the case of Luther vs. Borden 
 7 How- 1, the power is conceded to the 
 legislature by the bar and * the court. 
 But it is my opinion that the existence of 
 such legislative power, in this state, may 
 well be asserted under section 3 of the 
 Declaration of Rights, a part of the con- 
 stitution itself. This section, after declar- 
 ing that the people of the state have an 
 inherent right, to alter their constitution 
 and form, of rovernment, expressly pro- 
 vides that "sum right should be exercised 
 in pursuance o"law and consistently with 
 the constitutit a of the United States." 
 
 "In pursuance of law.'''' What law? 
 Why, such law as might be provided for 
 that purpose by the legislative authority. 
 If the framers' had intended to limit" the 
 power of altering it to the specific mode 
 prescribed in article 13 of that instrument, 
 the form of expression in section 3 of the 
 Declaration of Rights would manifestly 
 have been " in pursuance of the consti - 
 tution of the state, and consistently 
 with the constitution of the United 
 States!" The use of the term law ig- 
 nores the idea that the mode of altera- 
 tion was. intended to be confined to the 
 mode specified by the constitution. Loose, 
 as in many respects, is the language of 
 that instrument, it can hardly be supposed, 
 that while its framers were so careful in 
 guarding against a collision with the con- 
 stitution of the United State, they were so 
 
grossly remiss in overlooking a collision 
 with the constitution of the state, — (even 
 deserting its universal appellation of con- 
 stitution and calling it a taw,) — if they in- 
 tended to set up that instrument as the 
 only guide in any proposed change of its 
 provisions. 
 
 Doubtless, the framers of this section 
 (3) (which was unknown to the con- 
 stitution before 1868,) had in mind the 
 celebrated unlawful attempt made in 
 1841-2 by Dorr, and others, citizens of 
 Rhode Island, to change the form of gov- 
 ernment in that state, without any law 
 passed for that purpose. They undertook 
 to do this, through the instrumentality of 
 mere gatherings of the people, whether 
 qualified voters or not, assembled at their 
 call, and voting without any law passed 
 for that purpose. This mode was declared 
 illegal and revolutionary, and was decided 
 to be an usurpation of power, by the courts 
 both of the state and the United States. 
 After this revolutionary plan for altering the 
 constitution was defeated, the legislature of 
 Rhode Island, in obedience to the voice of 
 a decided popular will, passed a law pro- 
 viding a mode for the people to call a 
 convention. And " in pursuance of law" 
 they did call a convention, which reform- 
 ed their constitution to suit the popular 
 will. The Rhode Island case illustrates 
 fully the nature of the right«of the people 
 to change their constitution ' in pursuance 
 of law and consistently with the constitu- 
 tion of the United States." 
 '^s In my judgment I might i.ere rest the 
 "argument in support of the power of the 
 legislature to provide the means, whereby 
 the people may express their will in regard 
 to the proposed changes of the constitu- 
 tion ; but the question has been asked, Of 
 what use, then, is section 1 of article 13 ? 
 The same question was presented in the 
 convention of 1835, and was answered by 
 Mr. Gaston, in substance, That the authori- 
 ty conferred in that section was not in- 
 tended to limit the power of the people to 
 call a convention, by their votes in pur- 
 suance of law passed for that purpose, but 
 to allow the legislature, too, to call a con- 
 vention, whenever two-thirds of all the 
 members of each house should concur so to 
 do. It was then deemed true, and we 
 may assume it to be true at all times, that 
 whenever eighty members of a house of 
 one hundred and twenty, and thirty-four 
 
 members of a house of fifty, all elected 
 upon the basis of numbers and fresh from 
 the people, shall concur in voting for a 
 convention of the people, the vote will be 
 in full accordance with the popular will. 
 With the overwhelming proof of this will 
 which, such majorities of the representa- 
 tives of the people would exhibit, it 
 would be, manifestly, a superfluous and 
 needless work to ask of the people whether 
 they wanted a convention. Common sense 
 teaches us that it should be called at once 
 by the people's representatives. 
 
 The manifest difference between the two 
 modes is, that in the former case the peo- 
 ple determine for themselves, as they have 
 a right to do even in doubtful cases, their 
 will whether they desire a convention. 
 In the latter case that will is presumed to 
 have been fully determined by the election 
 of members ; and the legislature proclaims 
 it and proceeds at once to provide the 
 means of giving it effect. 
 
 In this light section 1 of article 13 was 
 viewed by the convention of 1835. If, as 
 argued by some, this section was intended 
 to deprive 80,000 voters of the privilege 
 of changing their constitution because 
 other 40,000 of their political equals would 
 not consent, then the government is an 
 oligarchy, both in form and practice, and 
 the fervid declarations scattered through- 
 out the Declaration of Rights, "that all 
 men are created equal ;" that " all political 
 power is vested in and derived from the 
 people;" that "all government is founded 
 upon their will only ;" that " they have 
 the inherent, sole, and exclusive right of 
 regulating the government ;" " of altering 
 and abolishing their constitution and form 
 of government ;" that " all elections ought 
 to be free ;" that " no property qualifica- 
 tion ought to affect the right to vote or 
 hold office ;" all — all of them are but 
 beautiful flowers, strewn by the hand of 
 the artful demagogue, over the tomb of 
 popular rights. 
 
 Although it be true, in contemplation 
 of the constitution, that the members of 
 each house are presumed to represent the 
 views of their constituents, it would be 
 unwise to conclude, therefore, that when- 
 ever a bare majority of the representatives 
 may desire a convention, the people desire 
 one also, and to call it without consulting 
 them ; because experience has often taught 
 us that a majority of party representatives 
 
10 
 
 may be elected by a minority of the whole 
 number of voters. Hence it would be un- 
 wise to allow a mere majority of the mem- 
 bers of a legislature — or even concurrent 
 mere majorities of both houses — to call a 
 convention ; but, certainly, the spirit of 
 the present constitution forbids all idea 
 that any grievance can result from the peo- 
 ple's being allowed to vote whether they 
 desire a convention. For, if the repre- 
 sentatives should, at any time, be remiss in 
 preparing the means for exercising this 
 right, the people are invited to "assemble 
 together to consult for their common good, 
 to instruct their representatives and apply 
 to the legislature for a redress of griev- 
 ances ;" and we are, moreover, assured that 
 to aid the people in this, " elections should 
 be often held." Conventions authorized 
 by law, and instructed by the law, under 
 which they assemble to make specific 
 changes in the constitution, have a notable 
 and recognized precedent in this state. 
 It is wrong to suppose that any true lover 
 of liberty will depart from such instruc- 
 tions and seek to make any fixed law with- 
 out the full popular sanction. Mr. Gas- 
 ton, in the convention of 1835, expresses 
 my views, in the following language : 
 
 "According to the theory of our govern- 
 ment, all political power was derived from 
 the people, and when they choose to make 
 a grant of power, that they might make 
 a plenary or a restricted grant, might give 
 
 it all or in part. The Legislature by thei{| 
 act proposed to the people a convention,!;';: 
 with powers, restrictions and limitations j!!j 
 set forth in the act. It was as it came!|'ji 
 from the legislature, no more than a prop- jiip 
 osition or recommendation. It must orig-{|ij! 
 inate somewhere, and with nobody could jjj'j 
 it have originated with so much propriety!! 
 as in that which represented the peopleijlj! 
 for legislative purposes. The proposition jjjji' 
 having been sanctioned, it be:ame an act ||»{i 
 of the people ; but it has been sanctioned ji}'| 
 precisely as it was proposed. Such a con-|i{ii 
 vention as is proposed in the act of as-lliji 
 sembly, and no other, has been called ; andjil;! 
 therefore, that act, so sanctioned, must bei|!l< 
 regarded as our power of attorney. If we'ijjj 
 transcend the limits or refuse obedience toji!ji 
 the conditions therein provided, we arejjjij 
 not the convention called by the people, ijjjj 
 but a self-constituted body." 
 
 In conclusion, I desire to say, that I cor- jjjj 
 dially endorse the provision in our consti- |}{ 
 tution, that the right to change the con- m 
 stitution "should be exercised in pursu-Jiji 
 ance of law ;" and as the legislative power jijjj 
 is vested, in the general assembly, that [|| 
 body alone has the unquestioned power tojlli! 
 make a law, whereby the people may ex- j]|i| 
 ercise their ' : inherent, sole, and exclusive jijij 
 right to alter and abolish their constitu- i|j 
 tion." 
 
 I am, respectfully, yours, 
 
 B. F. MOORE.