Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1866-08-02
THE WILMINGTON JOURNAL.
WILMINGTON, N. G., AUGUST 2, 1866.
The Late Convention-Its Powers.

-ro ,yere or,,osed to the ratification of the new
Constitution, among other reasons, because it had
been proposed by the late Convention. We pro-
pose, to-day, to examine, at such length as our
space will permit the authority of the ConVen-
ton to legislate for the people of North Carolina
We are glad to see that this question is begin
ming to attract attention and to excite discussion
more important one has never, at any tlme'
been presented to any people. Sooner or later IL
must be judicially ascertained, for there are too
many cases that will hinge upon it, to allow 1t TO
remain undecided. When it does come up square
w. we feel sure that it Will receive that consdera-
ton which it's Importance and the we'll known char
acter of our Court antitle us to expect.
We published last week letter of Col. Allen,
in reply to the letter addressed to delegate OF the
late Convention and it will give us pleasure to pub
ish the opinions of other gentlemen OF the OAR
Colonel Allen does not, however, take issue win
the positions laid down in the letter upon which
he comments. He says the argument e is founded
purely upon the ground that the Convention was
constituted by the President in his military capa-
city and that the Constitution was legally IN force
in the State and binding upon the people. AS
an original proposition of law, he confesses frank
lv he has not yet been able to see his way clearly
enough to satisfy his mind as to the latter
part, and therefore ignoring the maxim, Just1c1d
fat ru cOelun he directs his objections to the IN
convenience arising from that view OF the case
As to the first part his conclusion IS that there Is
a difference of opinion between the writer OF the
letter and the President, and that, while he de-
clines to say whether he thinks the President ght
in this particular he prefers to yield the position
he has assumed. We presume, therefore, that he
does not intend to be understood as arguing the
question upon its merits. Indeed we have seen
no argument sustaining the validity OF the author
ity claimed by the Convention upon its merits
Now, the old Constitution was legally in force
or it was not. If it was, then the Convention
was extra constitutional and illegitimate, not
having been brought into being under the sane
ton of the LAWN word, bastard, and It's So
called ordinances are Of no binding force. Has
the defect in its birth been cured What tribu-
nal has authority to cure such defects-to legitl-
mate such offspring?
If the old Constitution was not legally in force
how did it loose it's vitality? 1t was confessedly
at one time the law of the land, and from the day
of its adoption had been recognized as such, and
as republican in form, by every branch OF the
Government, judicial, Legislative and executive,
both State and Federal. If it was in existence
and republican in form, then clearly the 4th Sec
ton of the 4th article of the Federal Constitution
conferred no authority upon the President in the
premises-gave him no right to declare us depriv-
ed of all civil government or in any way to inter
fere with it. Is it claimed that it lost by for
fixture for treason, though corporation that
had, upon quo acarra1atO, been ascertained judi
cially to have violated its charter If our State
was corporation and the Constitution its charter,
who granted it who had the right of visitation !?
before what tribunal could the quo erarra1uo be
tried who could bring it, and who would be the
defendant in the case ?
But suppose it is & corporation in law. If we
mistake not, Blackstone declares ga corporation
cannot commit treason felony other crime in
its corporate capacity, though it's members may in
their individual capacities Can State, though
not corporation in law, commit treason? If it
can, there would surely be some tribunal before
which its guilt or innocence could be judicially
determined otherwise such treason could be COM
mitted with impunity, as legally punishment
be inflicted until the guilt is legally ascertain
ed Where is the tribunal before which State
can be judicially arraigned for trial Until such
be shown, is it not fair to conclude there is no
such offence as treason by a State known to the
law
But it may be claimed that the old Constitution
ceased to exist by virtue of the military conquest,
on the principle that the conquest of country
works the repeal of all it's laws Admitting for
the sake of the argument, that it may strictly be
the letter of the law, that State 'may be treated
as a conquered country" to use common express
ion, though Vattel does not regard the doctrine
as &c countenanced by reason conformable to
humanity" was not the old Constitution restored,
except SO far as it had been modified by the Con-
yention at its first session under the direct author
ity and approval of the President, by the Peace
Proclamation, as it is called ? In fact, previous
to the issuing of the Peace Proclamation, the
Convention had acted entirely upon the ground
that the Constitution il full force and effect,
and began their legislation by making amend
ments thereto and filling offices and ordering
elections Hereunder, all of which had the direct
approval and endorsement of the President.
If there was conquest, and by it Constitutions
and laws were abolished, it is clear must look
to the Conqueror for ones, and whatever Gov
eminent and laws we may have must have received
vitality from him-if old ones should chance to be
reordained, they are binding only because he wills
it and not because of any pre-existence. The Con-
queror directed certain class of individuals to
select men to meet in Raleigh, to prepare form
of government for the State, in conformity with
conditions prescribed by him, precedent to its
being made part of the Federal Government,
and in this view of the case it would not make any
difference if the President had nominated the
members of the Convention himself.
Thesemen metin Raleigh and proceeded to action.