* * *

not derived from their charters were confessedly 'the freest of the free,' and rebellions, so-called, were the order of the day. * It must not be supposed, however, that the freedom enjoyed in North Carolina was simple license arising from a weak and careless government, for the people stoutly maintained that their liberties came to them by operation of the plainest of plain laws from the Royal Charter, under which the colony had its rise and got its growth; in a word that here, at least, upon subject and sovereign alike 'thus saith the law' was a supreme limitation."* The proprietary government ended in 1729 and was succeeded by a government under governors and a council appointed by the Crown. Under this rule there were five Colonial governors, the last of whom, Martin, fled before the people in May, 1775.t The colonists at all times insisted that by the terms of their charters they were entitled to possess and enjoy the rights of British freemen. ‡

One of the earliest manifestations of the people against the arbitrary conduct of England was the Edenton Tea Party in 1774, which was a protest by the women against what they conceived to be the unconstitutional acts of Parliament.

The first Provincial Congress, which met at Newbern on August 25, 1774, "was the first representative assembly that ever met in North Carolina or in America save by royal authority. Instead of having royal authority, it had popular authority, and met in open flagrant defiance of the Crown, its Governor and his proclamations."§

A second Provincial Congress met at Newbern on April 3, 1775. These first two congresses were called to remonstrate against the infringement of constitutional (chartered) rights (Connor XIV). The third congress met at Hillsborough on August 20, 1775. They no longer claimed to be acting under the Constitution of the British Empire (Ashe's History of N. C., p. 473, Note), but organized a

*IX Colonial Rec., IX.
+IX Colonial Rec., I.

The Constitution of N. C., by Connor and Cheshire, XII.
IX, Col. Rec., Pref. Notes XXXI.

system of civil government. The next congress which met at Halifax on April 4, 1776, unanimously instructed the delegates in the Continental Congress to concur with the other Colonies in declaring independence, and on April 13 appointed a committee to prepare a temporary civil constitution. On April 20th, Samuel Johnston wrote from Halifax: "We have not been able to agree on a constitution. We have a meeting on it every evening but conclude on nothing. The great difficulty in our way is how to establish a check on the representatives of the people, to prevent their assuming more power than would be consistent with the liberties of the people." This congress adjourned on May 14, 1776, without framing a constitution.

On August 9, 1776, the Council of Safety, which conducted the government after the adjournment of the congress, recommended to the people of the State to pay the greatest attention to the election, to be held on October 15th, of delegates to represent them in Congress as it would be "the business of the delegates then chosen not only to make laws for the good government of, but also to form a constitution for, this State; that as this last is the cornerstone of all law, so it ought to be fixed and permanent."

William Hooper, who was then a member of the Continental Congress, wrote a letter to the congress about to assemble, giving his views on the proposed constitution. He advocated the appointment of judges during good behavior and said that "a single branch of legislation is a many-headed monster which, without any check, must soon defeat the very purposes for which it was created and its members become a tyranny in proportion to the numbers which compose it."*

As further illustrating the dominant idea then prevailing that the legislative branch of the government must be held in check and that the constitution should define and limit its powers, the "Instructions" are interesting, which were adopted by the people of Mecklenburg at a general conference held at the courthouse "for the express purpose of draw

*Connor, XIX.

ing up instructions for their present representatives" in the congress which was to convene in November, 1776, to form a constitution for the State. They were instructed "to set forth a bill of rights containing the rights of the people and of all individuals, which shall never be infringed by the lawmaking power, or other derived powers in the State."* They resolved that "whatever is constituted and ordained by the principal supreme power (that is the people) cannot be altered, suspended or abrogated by any other power.'

The people of Orange county gave similar instructions to their delegates.† They also resolved "That the judging power shall be entirely distinct from and independent of the lawmaking and executive powers."

Iredell in his letter "To the Public" wrote:

* * * * *

It

"I have not lived so short a time in the State, nor with so little interest in its concerns, as to forget the extreme anxiety which all of us were agitated in forming the constitution, a constitution which we considered as the fundamental basis of our government, unalterable, but by the same high power which established it. was, of course, to be considered how to impose restrictions on the Legislature, that might still leave it free to all useful purposes, but at the same time guard against the abuse of unlimited power, which was not to be trusted, without the most imminent danger, to any man or body of men on earth. We had not only been sickened and disgusted for years with the high and almost impious language from Great Britain, of the omnipotent power of the British Parliment, but had severely smarted under its effects. We felt in all its rigor the mischiefs of an absolute and unbounded authority, claimed by so weak a creature as man, and should have been guilty of the basest breach of trust, as well as the grossest folly, if in the same moment when we spurned at the insolent despotism of Great Britain, we had established a despotic power among ourselves. Theories were nothing to us, opposed to our own severe experience. We were not

*X Col. Rec. 870-a.
tX Col. Rec. 870-f.

* * *

ignorant of the theory of the necessity of the Legislature being absolute in all cases, because it was the great ground of the British pretensions. * * When we were at liberty to form a government as we thought best, without regard to that or any theoretical principle we did not approve of, we decisively gave our sentiments against it. We provided, or meant to provide (God grant our purpose may not be defeated), for the security of every individual as well as a fluctuating majority of the people. We knew the value of liberty too well to suffer it to depend on the capricious voice of popular favor, easily led astray by designing men, and courted for insidious purposes."

*

In like vein, a year later he said:

"The experience of the evils which the American war fully disclosed, attending an absolute power in a legislative body, suggested the propriety of a real original contract between the people and their future government, such as there had been no instance in the world but in America. Had not this been the case, bills of attainder and other acts of party violence might have ruined many worthy individuals here as they frequently have done in England, where such things are much oftener the acts of a party than the results of a fair judicial enquiry."

Judge Ashe, in his letter to the Speaker of the House of Commons, written in December 14, 1786, referring to the charge preferred against the Court for suspending or disregarding an act of the Legislature, in Bayard vs. Singleton, said: "If my opinion of our Constitution is an error, I fear it is an incurable one, for I had the honor to assist in the forming it and I confess I so designed it and I believe every other gentleman concerned did also." Judge Ashe was an active and influential member of the convention which adopted our Constitution, and was a member of the committee to prepare it and was thoroughly conversant with the views and purpose of those who framed the Constitution. Ashe's "opinion of our Constitution" is clearly set forth in Bayard

*Iredell to Spaight, Aug. 26, 1787.

vs. Singleton, finally decided six months after this letter was written, and from this it appears that the framers of our Constitution "designed" that instrument so that the "judicial power was bound to take notice of the Constitution as much as of any other law whatever" and as the Constitution stood "in full force as the fundamental law of the law," every citizen had undoubtedly a right to claim the protection of its provisions and no act the Legislature could pass could by any means repeal or alter the Constitution, and any act in conflict with the Constitution "must stand as abrogated and without any effect."

INVIOLABILITY OF CONSTITUTION.

Thus the principle of the inviolability of the Constitution and of limitations upon the law-making power was uppermost in the minds and thoughts of the men of 1776.

Having experienced the tyranny and despotism of the unlimited power of the English Parliament, it was but natural when the Colonists set about to form a government for themselves they should undertake to bottom it upon a different principle. They were unwilling to have the legislative power omnipotent as in England. They had rebelled against what they regarded as the usurpation by Parliament of their natural and constitutional rights and they were determined to form a government with checks and balances and so they framed their written constitution, dividing the government into three separate departments, each with its powers limited and defined.

RISE OF JUDICIAL POWER.

When the North Carolina Court, in 1787, announced the principle that the judiciary had the power and it was its duty to declare an act of the Legislature null and void if contrariant to the Constitution, the State government of North Carolina was only ten years old, and the Federal Convention was then engaged in framing its constitution.