Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1871-06-02

at variance with the great political truth
that the people possess the inherent right
to alter their constitution.
I can see no eud to t. 9 intoleraDle gfiev
aGc which may continually spring up IN
new States with small populations, form
ing their first constitutions with such res
traiEts impo-ed oA the will of MAJ 0rity
If the people ; and equally grievoue even
TO condensely populated States, must
be such restraints in the progr s9s OF the
age.
With all proper respec ct for the opinions
Of thoke who may differ from mine, am
cons .rained to say, that the ab; urdl1es 10
vOlved in such q construction with the
guarantees of a government according to
the popular WILL so often repeated In the
c1ut titution, forbid me to entertain
doubt, that the privilege OF the people to
exercise their inherent right of self-gov-
eminent remains uuaffec cted by the first
section of article 13 of the State Const1tu-
ton. do not intend to assert that this
section Of that article Is inOperAtive.
shall turn to it's consideration Lr~s entity
But freely declare it as my opinion, de-
,,berateIy ana m lch considered, that even
if that al tice had been SO worde1 as to
remove all cavll es to It's meaning, Dy de-
; cla1ing IN exp ess words, that ''the people
| should not assemble in convention other
wise than as provided in that section, the
provision would have been destitute OF all
obligation. For I maintain, as q cardinal
! principle in the broad self-gover 4ment by
universal suffrage, where each provision IL
| the fixed law owes it's original existence to
a majority, that every such provision must
| depend, for the combination of its exls-
| teLce, upon the same will which created 1t,
nan ely, the will of the pres ent people; that
that will cannot be crushed or impaired in
its strength by the past creating will, that
| kI,.,x h r,f fSrLf nah h.
ject to change by the second will as 1t was
10 be moulded by the first viii; and that
every device. by the creating will, to de-
| throne the future will OF the people, or
smother its existence, or command it into
silence, is fraud on the inherent right of
the people to have their will, and to live
under l. government Of their will. To
! hold otherwise, is to maintain that :he peo-
pie may be defrauded Of the right OF self
government, under the pretenoe of protec-
ting constitutions from changes by the
popular will !
It has been suggested that the Conven-
| ton of 1868 has conferred on the Legl5a-
ture no express power to provide ways and
means for a>certalning the will OF the
people to have q convention. II that be
so still if the people have an inherent
right to a priv e3e, guaranteed by the
| constitution, there must be s Ome mode Of
imparting practical life to that privilege
and securing it fruits. In every code OF
laws, where "a right Is proclaimed and no
spe cial remedy is provided, one is allowed
by implication, and that one is selected
which is most adaptable to secure the
privilege. Every person comedies that
the General Assembly is the fiuest, and,
indeed, the only fit instrument for that
purpose. In all cases Of similar defects
(if defects they may be called in the con
stitutions of the States) the duty of max
ing provision to ascertain the popular will
has been assumed by that branch Of ma
tional power without question in this State
of It's authority euoh q 4ses until recent
". Certainly, if in the absence OF express
provision, there be any authority for such
DurDose none can be SO appropriate Al
the legislative agents of the people the M
: selves. This power of the Legislature, te
provide the means whereby their will may
be known, has been recognized in thu
State as we'll by the Legislature of 1881
3 a bv the convection which ass ssembled IL
j 1895 and formed what is now article l3 o
= tie present constitution. need no hign
u er autho ority for the ex steDce Of such pow
T er. AS it stood urdisputed and unquestlon
ed by such jurists as Judges Daniel, loom
g er and SeaweIl. han the openly declare
: opinion, in their presence, of William
Gaston In TIE case Of Luther Is. Borden
- How. 1, the power is conceded to th
% But it is my opinion that the existence c
- such legislative power in this State ma
: we'll te asserted under scott 8 OF IN
10 Declaration of Rights part of the con
Z, stitution itself. This section, after decla
~ 1ng that the people OF the State have a
inherent night to alter their constitute
u and form of governme expressly pr
~ yides that ''such right should be exercise
ol in pursuance of law and consistently VII
De the constitution of the Uni ed States.
te .sIn pursuance of law" What law !?
on Why, such law as might b9 provided T.
81 that purpose by the Legislative authofit
o' If the trainers had inieuded t" limit Il
o power of altering 1t to the fprc1ao moo
ef Orescribr IN article 13 Of that Ills rnmei
~ he form OF expression IN section c1 c
ol Declaration o. Right would manitest
ri have been =: il pursuance OF the CONSIST
tion OF the f>tate, and consistently Wi
70 the constitution If the Uultei Sta4es.
he The u,e Of tt term law ignores tue III
'se shat the mode of alteration was Int nj
as. tn be confined to The mode specified
OF the cons tuition Loose, as IN many I
eoI spects, is the language Of that 1nsfru ume'
"a il can hardly be supt o ed, that while
aSh trainers were 20 careful in guarding again
90 a collision with the constitution OF
ro- United States, they wee s. gr- ssly rem
ID in overlooking q colli-iOn with the cone
Ger tntion of the State-(eveu desertlng
'lse universal appellation of CONSTITUTION
OF calling it a law)-if they iutended to set
en- that instrument as the only guide In
1T; i: proposed change Ct is provisions.
~ on Doubtl4ss, the trainers Of this sect
Ine tsl. (which was nnkno"n to the consI
~. a. Hon before 1861 tai IN mind the 9:
w. w. brated unlawful attempt made In 1S4l
n ns bv Dorr, and Others, ci;izens Of Rht
.he Island, to change the form of govern N
.n5 'n5 in that State. without any law passed
anu that purpose. They undertook to do
er- toronoh the instrum enta!ity of mere ga
one one erings of the people, whether qqsaa''
anu voters or not, assembled at their call,
~ ,u'e voting without any law passed for
u, purpose. This mode was declared lil'
Tue and revolutionary. and was decided to
-: an usurpation OF power by the courts 3
e1i :E of the State and the United States. A
II ~ this revolutionary plan for altering
~ @ constitution was defeated, the legisia'
iIr h;r of Rhode Island. in obedience to the
hno1 n.~ of decided popular will, passed a
3 o. providing mode for the people to c.
l IL kS in nj