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Day 43 of the Convention

Tuesday, March 3, 1868

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

The immigration ordination was referred until 10:30 o’clock tomorrow morning.

There was much debate and discussion in regard to the election to the Convention of one of the delegates. This prompted a protest from the minority party and some discussion of procedures for dealing with protests. President Cowles said that he desired the matter to lay for a day or two. 

In regard to constitutional matters, the Report of the Committee on Punishments, Penal Institutions, and Public Charities was taken up. Mr. Welker is the chair of the committee. Section Nine provides that “It shall be the duty of the Legislature, at an early day, to devise means for the education of idiots and the cure of inebriates. Section Ten provides that “the General Assembly shall provide that all the deaf-mutes, the blind, and the insane of the State shall be cared for at the charge of the State.”

Mr. Welker, as chairman, was given the opportunity to speak on the report. He said*:

This subject is a new one, and but little help was given by any constitutions. Abundant recourse had been had to legislation and this was the result of the labors of the committee. The only disagreement in the committee was in relation to capital punishment. In the advance of Christian ideas, I hold that the recommendation of the committee is proper and merciful. As to a penitentiary, it had once been voted down in `46 by the people, because an idea was prevalent that it would cost too much. I desire to see the evil of the country goals remedied, so that the health and comfort of unfortunate criminals be regarded. In relation to public institutions, the 7th section provided for the appointment of philanthropic men to overlook and regulate them. Then there was provision made for many, who are now without trade, and run into crimes from necessity. Then the inebriate is to be cared for. The humanity of the age will provide for this unfortunate class. It is too plain to argue the necessity of taking care of the insane, and the deaf and dumb and the blind. This was incorporated at the suggestion of the Superintendent of the D. & D. Asylum, because the poor hated to swear to their poverty, which was required before their unfortunate children were admitted. Both the Asylums were nearly full, and in neither of them is provision made for the colored people. Now I hold that properly managed, penitentiaries will bring in large revenues to the State. The best way to build houses of refuge is to have small reformatories of twenty-five or thirty persons.

Delegates engaged in lengthy discussions and proposed amendments to provisions regarding the penitentiary and crimes where the death penalty could be imposed.

Delegates also considered amendments to Section 5:

SEC. 5. A House of Refuge shall also be established at an early period for the juvenile offenders, where, under proper supervision, they may be reclaimed from vicious habits and fitted for the duties of citizens.

The exchange including the following*:

Mr. Jones, of Washington: I move to strike out “shall” and insert “may.”


Mr. Harris, of Wake: I move to reconsider. I wish to make the duty of the erection of a house of refuge for juvenile offenders, obligatory. 

Mr. Heaton: I oppose the reconsideration of the vote. The platform of progress is broadly enough enunciated, and when the people are able, a house of refuge will be built by the Legislature.

Mr. Ing: Does not “may” leave it open never to be done?

Mr. Heaton: No, sir. “May” would make the erection of a house of refuge obligatory at some future time. 

Mr. Rodman: —but the language of this section says one house of refuge—a large, expensive building, shall be erected. Their personal comfort is to be taken care of. Now some poor boy, eating corn-bread and pork, has only to steal a little thing or so, and be sent to this large, and expensive building. It is best for parents to chastise their children and turn them loose. I do not at all approve of the scheme.

Mr. Harris, of Wake: It is well known that society has been much disturbed by the war, and now juvenile offenders need protection. I believe an enlightened public sentiment endorses the proposition.

Mr. Hobbs: I move to strike out the whole section.

Mr. Tourgee: Inasmuch as juvenile offenders deserved punishment as much as others did, I am of the opinion that we should have a separate place for them. I do not see how it would cost more to put a boy in a house of refuge than it would cost to put him in a State prison. The houses of refuge proposed were to be self-supporting, so that while the boys who might be sent to them would be receiving a good education, they would also be forming habits of industry to qualify them for citizenship. On the contrary, if the young offender was placed in the State prison, he would be surrounded by every influence which could corrupt his morals. I can see very well what the object of “striking out” meant; it means nothing less than to put them, the boys, in the county prison. To put them there to freeze in the winter, without fire, or even the proper necessaries of life—was that humanity? They were asked to strike out, so that upon the third reading men might say, “we have got to have the lash.” But he knew that if these young offenders were put with the old ones, it would be more expensive to North Carolina than ten millions of dollars. A similar system to that now proposed has been introduced in Vermont and it has worked well. This is the only safeguard for the future, and if adopted it would reduce the expenditure of the courts.

Mr. Hobbs: This Convention could get along without calling in little frozen-up Vermont. Whoever heard of a jail for education of the children of the country? That is a beautiful place to educate children. I heard the fool-killer was coming and hope he would hurry along.

At adjournment, the Section stood as follows:

SEC. 5. A House or Houses of Refuge may also be established at an early period for the juvenile offenders, where, under proper supervision, they may be reclaimed from vicious habits and fitted for the duties of citizens.

The convention reconvened for the evening session at 7:30 p.m. and took up an ordinance regarding debt. Mr. Ashley then spoke at length on Section 5; however, there was not a quorum present so no action was taken.

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 are close to verbatim from the reported resources with some adjustment to put all comments in first person, present tense.


** The Compilation reports the opposite but the textual reading suggests that this is the amendment offered by Mr. Jones.

Ann McColl

Ann McColl is an attorney and state constitutional scholar.