Wilmington journal., 1866-08-09
THE WILMINGTON JOURNAL.
WILMINGTON. N. c., AUGUST 8, 1866
T. 80. Co,,,e,,ton and the Old North state%


some ofahe arguments contained in the long
elaborate and carefully written editorial of the
OLd North Stste in reply to position taken IN the
latter to q delegate to thelate Convention. We
have carefully read the article OF our cotemporary
and we did so because from the reputation he had
acouired from the authorship of the celebrated
"Dayidson letters " as writer and thinker on
constitutional questions unexpected to find Thea
eument in favor Of the legitimacy OF the Con'eh-
ton presented in its strongest form. With all de
respect. however, to his ability and constitutional
learning truth compels to declare that our aoie
cotemporarv has not produced any change in our
views We make no issue with him as to the cor
rectuess of his private belief as to the true theory
of the stHus of the State and Federal Govern
ments. We intend simply to meet the points he
makes in favor OF the Legitimacy of the Conven-
ton.
He saws: Here then was the State with her
Constitution and laws in full force, but with no
administration of her laws and 40 means Of set
ting the machinery of the civil government IN
motion" Bat as the late State Government
was not dllored to exercise the functions OF gov
ernment after the surrender of the Southern ar
mics there regular way left IN Which a Con
yention of the people could be called, and the all
Yet as it was hell to be indispensable that such
a Convention shoul be called, some other way
had TO be and was found out ''The question
arises whether the irregular manner IN which IL
was called III any way affects its power Ihe
Constitution of North Carolina provides that no
Covention of the people of the State snail De
called except by the concurrence OF two-thlrds Oh
the M 4mbers OF each II ,use of the General AS
sembly We srbmit that he has not fairly stated
the question, for the creation Of the Convention
being confessedy contrary to the Constitution ana
laws in force it should be- not whether It's validity
was thereby affected but erhethe' its iNegdHy had
erer been cured 1t is an ingenious attempt to
shift the burden of proof, but one which cannot
be sustained; for clearly having confessed the il
legality of the CREATION it belongs to him to show
that it has been cured, otherwise the whole falls
eff it was a valid Convention for any purpose
and the author of the letter in the Journal admits
that it was, then it was valid to all intents and
purposes as if it had been called in regular man.
ner." We submit that fallacy is patent here
also, and that the proposition stated IS untrue
It may be true that if valid for any Of the purpo-
ses for tUhich cuLe. it valid for all such
purposes, or rs he himself stated elsewhere, " 1t
was as lawful body for all purposes rightfuly
pertaining to such Convention as it could possibly
have been fer any such purpose" But any fur
ther tlGc this we deny the truth of the propsi-
ton. The point of this fallacy is apparent when
it is remembered that one of the main questions
at issue is whether the Convent on endowed
with powers for certain specific purposes only, or
whether it was endowed with full powers Cor all
purposes.
$50 under the English Constitution, Par
lament could be summoned except by a Royal
writ under the great seal" g But the Parliament
which restored Charles II, was in fact, but mere
convention of people convened in the absence OF
the King from his Dominions without the
blance of a Royal writ. Yet this body thus irreG-
ularly assembled, continued to act as the Parlia
ment of England for eighteen years, and the va
ldity of its acts was never questioned In any OF
the English courts. So too the Convention which
declared that james II had abdicated the throne
and elected William and Mary to fill the vacancy,
was body assembled without any Of the fOrmall-
ties required by the English Constitution. It was
III fact called by the Prince of Orange himself In
the ahse of the King by letter under his sign
manual while in the exercise of mere Provision
al Government, and in that respect, it bears
very strong analogy to the late State Contention.
Both Conventions did indeed assemble without
the suction of the Royal writ, and therefore
referred to in history, as being properly Conren-
ti0,,s and not PCnIuneas. This is in itself sig
niicant fact The first Convention was assem-
bled III 1860, in the name of the keepers of the
liberty of England, by authority of Parliament
It dissolved 10y the King 29th December,
1860, in speech full Of the most gracious
pressons," so that it acted only about eight
months instead of eighteen years, and its acts
confirmed the ncxt year by Stat. 13 Car II c.
z and c. IA, passed by Parliament
But the second Convention is the one mainly re-
lied on. This too called without the sanction
of a Royal writ but what we're the preliminary
steps? We can not do better than to give the
language of Hume, VINO we presume will not be
CONSIDERED as partial to William.
Some lawyers entangled in the subtlees and forms Of
their prof esu could think of eXpedient but that the
Pnuce hould claim the crown b! right of conquest
= = = but this sure LeIng destructive of the
tnr,ue ould be establ She'd pruentl rejected hy
Prince, VINO, nAun nSt possessed OF ou will OF
gu" nee aud dircc ION The Peers aAd bishops the
number OF nnely, made add ess desiring him
summon II convention by circular letters i'll
the mean time he malageln' 1t OF public affairs
= TIE Prince seemed still unwilling to act upon
,IthOrity which might be deemed imter,ect lie
dcsr"us "t OOlalhg mere express declaration OF The
public c'nseut jndclous expedlent fallen for
that purpose. Ali the members who had stten iii the
House Commons during any pariam' mt Of hares H.,
(the only parliament whose electln regarded 1ree
d rmen and nifty ot the common council. his was
gard as The most propr atlve of the people
Iuey unanimously voted the same address with the lords
AMI the Prince being then supported by all the legal
tn rlty which cnuu possibly be Obtai ed critical
juncture wrute letters counties and or
purati's England his orders were universally COM
piled wlth-vol. II, page "a.
La real ut The public can scarcely ever be
he ard %,d the "plnols III the citizens at that time