Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-03-08

p" an ordinance 10 change the Jurisdiction
of the Courts and the rules of PLEADING
therein, and by the oath Section thereof
provided that "the General Assembly shall
have no power to! repeal, alter or nullifv
this ordinance until the third Monday in
November, 1865.
The Convention subsequently provided
for the election of members of a General
Assembly, and made an appoltionment of
representatives in the House of Common
The General Assembly thus authorized H.
be elected, passed an act altering and mod
flying IN essential particulars this ordi-
nance, and IN express words repealino 90
much OF said ordinance as comes in con.
fiict with said act VII
The very grave and important question
is presented, which of these is tbn LOW, ~
the land, which is binding mon tJ,e Corrta
to administer, the officers of iust;co 70 a.,
cute, and the people to obey. Both com
from sources entitled to our highest consid-
Grafton ana respect but both cannot no
obeyed, as they are repugnant to each
other, and it is impossible to reconcile
them. Embarrassing as this position is
the path of duty i'll which Il Judge must
, walk is plain and unmistakable. He must
patiently and industriously seek to en-
Tighten his Judgment upon all questions
and especially must he do this, when it in
wolves the right Of the Legislative depart.
ment to legislate upon particular subject
a body for whose opinions he should ALWAYS
have the highest regard, and whose action
he should always sustain, if he can consci-
entiously do SO. When his judgment is
thus enlightened, and he clearly sees the
path of duty and right, he must wall;
steadily, firmly, and fearlessly i'll it.
The Convention having been decided to
be rightful one, / presume it will not be
questioned that it had the power to amend
the Constitution or even adopt new one.
which would have had binding efficacy
upon ALL even if it had not been submit.
ted to the people for ratification. Whether
under the circumstances the Conven-
ton should have done so is q different
question and does not effect the question
of DO'Ct7' which / am now discussing
They could have incorporated in the Con-
stitution or organic law a PROVISION that
the General Assembly should never there
after change the jurisdiction of the courts
and the rules of pleading therein, or they
could have placed any other limitation
upon the power of the Legislature. Our
present State Constitution furnishes evil
dence that a convention has the power to
place perpetual prohibition upon the ac-
ton of the General Assembly, even in mat
tiers purely Legislative in their character.
Section Add is as follows "That no pur-
chase of lands shall be made of the Indian
nations, but on behalf of the public by
authority OF the General Assembly" The
third clause Of the fourth section of the
first Article of the amended Constitution
provides that, "The General Assembly
shall have power to pass general laws, reg.
ulating divorce and alimOny, but shall not
have power to grant divorce or secure ali
mony in any individual case" The 18th
clause of the same section and Article pro-
vides that, 'FThe General Assembly shall
not have power to pass any private law, to
alter the name of any person, or to legiti-
mate any person not born in lawful
wedlock, OF to restore to the rights of cti-
zenship any person convicted of an infa-
nous crime, but shall have power to
pass general laws regulating the same"
The 9Th clause of the same section and
Article provides that, 1.-THE General Assem-
bly, shall not pass any private law, unless it
be made to appear that thirty days notice
of application to pass such shall have been
given under such directions and such man
ner as shall be provided by law" Again.
the Convention which framed the Constitu-
ton of the United States placed perpetual
limitation upon Congress and also upon the
States, for instance, " No bill of attainder
OF e. post .fuct0 law shall be passed." No
!
ed from any State" No title of nobility
shall be granted by the United States. =
''No State shall enter into any treaty, ALI
! lance, or confederation, grant letters Of
marque and reprisals, coin money, emit
bills of credit, make anything but gold and
silver coin tender in payment Of debts.
pass any bill of attainder, ec post fttci0 law.
or law impairing the obligation of contracts
or grant any letter of nobility" Here
then, are limitations of power perpetual in
their operations Tor until the Constitution
is changed, both in the Federal and State
Constitutions upon Congress and the State
| Legislatures. If, therefore, Conventions
had the power to- make restrictions for an
indefinite period, surely they could for a
definite specified time. At all events, the
wise men who framed the Federal and State
! Constitutions thought they had such pow
er, and have undertaken to exercise il.
| The first paragraph, ninth Section, first
| Article of the Constitution of the United
States is as follows: ''the migration or i'm
portatiOn of such persons as any of the
States now existing shall think proper to
admit, shall not be prohibited by the Con-
gross, prior to the year one thousand eight
| hundred and eight, but tax or duty may
be imposed upon such importation not eX-
ceeding ten dollars on each person." Sec
ton first, Article first of the amended Con-
stitution of the State limits the power OF
the General Assembly for certain fixed pc
RODS of time.
The only remaining question is, have OF
dinances of Convention the validity and
binding effect as if they were incorporated
aud made part of the Constitution. If
they have not then each and every ordi-
nance passed by the late Convention may
be repealed by any future Legislature, for
all and every portion of its action is con-
tanned in ordinances and resolutions, no
one of which has been made a. part of the
Constitution. To what monstrous conclu-
sions would this lead US J.! The ordinance
declaring null and void the ordinance OF
the 10Th of May, 1861 the ordinance pro
hibiting slavery in North Carolina, the or
dinancc declaring what ordinances and
Laws are in force, and validating the acts
of civil officers during the war the ordi-
nances recognizing the just debts of the
State and prohibiting the payment of all
public debts created OF incurred in aid Of
the late rebellion, would be the subject OF
repeal by the General Assembly; and if