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Day 26 of the Convention

Wednesday, February 12, 1868

The Convention was called to order on Wednesday at 10 o’clock, Mr. Pres. Cowles in the Chair.

The divorce for Mrs. Hopkins – discussed at length on February 4 – was withdrawn from the Committee on Divorce and referred to the Committee on Judicial Department.

On matters of the constitution, Mr. Tourgee rose to speak to the issue raised the day prior regarding whether to abolish the distinction between action and suits in equity. In lengthy remarks, Mr. Tourgee said, in part*:

“in seventeen States of this Union civilization and common sense has overridden the prejudices and bigotry of bygone years. The rights and wrongs of their citizens are enforced in the same Court and by the same process. The present jumble of Saxon, French and bad Latin used in our law books, taken from the English system, illustrates the axiom of Talleyrand that language is given to conceal our thoughts, not to express them.” 

After further debates on the merits, Mr. Galloway objected to the process begun the day prior of bringing forward resolutions for consideration instead of drafted provisions of the constitution. He stated*:

“Why did they not do as other Committees in producing a majority and a minority report? Men are too afraid of risking their chances of future office and emoluments to risk any honest and straight out opinion. The discussion of yesterday and today is a mere matter of nothing, as the whole ground would have to be gone over with again when the Committee presented their final report. All of this debate was expending the people’s money merely to give certain men (Tourgee?) prominence. I am on the Judiciary Committee, but know no more about the report than what is in Heaven, and God knows, I am not in the right road to know what that is!” 

The question upon the resolution abolishing the distinction between Courts of Law and Courts of Equity was called for the yeas and nays. Yeas – 50, Nays – 38.

Mr. Harris called up his resolution from February 11 calling for a restriction in the length of speeches. The President decided it was an amendment to the rules and required a majority of all the members. Mr. Harris appealed this decision. After extensive discussion and wrangling, Mr. Harris withdrew his appeal.

On motion the Convention adjourned.



Ferrell, Joseph, ed., Compilation of the Official Report of the Proceedings of the Convention (Chapel Hill, N.C.: unpublished manuscript 2007). (See day 8 for fuller explanation of this resource.)


*The debate and other quotes from this day’s proceedings are close to verbatim from the reported resources with some adjustment to put all comments in first person, present tense.



Ann McColl

Ann McColl is an attorney and state constitutional scholar.