Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-05-03

! acts. He has overlooked the circumstance,
even in this minute investigation of the
mere attorneyship of this complaint, that
two distinct preliminary injunctlons are
prayed for-one i'll general terms forbidding
anything to be done towards the execution
of these acts; the other specially selecting
the particular acts whence the mischief
sought to be prevented must draw its life
and origin, and stopping, as was very cor
rect certainly, when it had designated those
particular acts, and making no effort to en-
join or to prevent Interior or subsequent
acts by high departments of the Govern
ment, whose action is entirely beyond the
jurisdiction OF this court. It will be seen
that the idea Of the pleader was, that if this
court would see that these acts were in their
whole length and breadth, in every SINGLE
thing directed to be done under them, ut
terly void and unconstitutional, some min
Or details, which might OF themselves be
valid IT standing alone, were altogether
| and purely auxiliary and leading to
the other, and therefore to be regarded
as unimportant and insignificant i'll them
selves, SO that the court might order the
injunction in general terms, and if there
was technical difficulty in that respect, OF
1t would be improper to deal i'll that man
ner with those acts, then the particular
! things proposed to be done, and from
which the evil was to cnsue, were specified
aS the subjects OF II particular Injunction
and the prayer is, that the court grant both
or one of these I'M functions. If the coun-
sci who may have participated in framing
| this bill have been as wise in action as coun-
sci as they have been accurate in their mere
composition as attorneys OF pleaders, in the
judgment Of this court, we shall certainly
escape pretty effectually from tho weight Of
| hn OnI1tE IL ,ro
us.
The disavowal by the learned Attorney
General of any sympathy with these acts,
with their aim, motive, or method, must
have much effect to disarm any observa-
lions that it might be proper for us other
wise to make 10y way OF exposing to con-
domination the tenor of these acts and the
objects that they have in view, looking to
the general nature of that object But the
| great point, and what may be called the
first point in his argument, is, that looking
to the frame of this bill and it's objects,
there is no evil pointed out and there is no
right sought to be remedied, falling within
the ordinary cOgnlzance of q court of equi-
! ty. 1t is said that we can suffer no injury,
because the existing government is not to
be abolished, and nothing can happen I'M
der these acts of a mischievous character
except those things which are hereafter to
ensue, if at all under the action of Congress
after convention has been held, and a
constitution formed, and a government
framed under it.
Now, I humbly submit that the learned
counsel has not stated with precision the
| effect and operation of these acts. They do
provide for something Interior and beyond
| the holding of convention, and the crea-
ton of State government with its regular
legislature under the same. They do make
provision for a report of these facts to the
President and to Congress, and for the adj
mission of representatives from that newly
created government into the halls of Con
gress and that we do not seek to enioin-
But it is mistake to say that the acts pro-
| duce no effect until this new State is thus
admitted through its representatives to the
halls Of Congress. That is a reward, q
promise held out, provided the State gov
! eminent and its legislature shall exist I'M
der constitution approved by Congress-
But, Independently of all such action as
this, these acts not only establish military
government, which the learned counsel
says is in some sense discretionary, so far
as its exercise against individuals is con-
cerned, but it authorizes and directs-it
communicative holding of an election, and
the holding of a convention in case the
electors vote for it, and the establishment
of q new State government !; and the first
act further declares that, until these States
shall be thus admitted into Congress, any
civil government thatmay exist therein shall
! be deemed provisional only; and it provides
that in all elections to any Office under such
provisional governments, all persons shall
be entitled to vote, and mono others, who
are entitled to vote under the provisions Of
| the fifth section of that act, and those per-
sons are the enrolled and registered voters
admitted by the act, and voting at elections
| held, not by the State officers, but under
the direction Of the commanding general
and by officers appointed by him.
| The effect is to restrain at once the hold
| ing of any election within the State for any
officers of the present State government by
any of the State authorities, directing all
| future elections in the State to be held I'M
der the direction of, and by officers ap-
pointed by, the military commander ; and
! directing that all persons OF certain classes
| described shall be the electors permitted to
vote at such election. 1t is, therefore, in
the language of our bill, an immediate
paralyzing of all the authority and power
| of the State government by military force.
That is plainly setting aside the present
| State government, and depriving it of the
necessary means of continuing its exist
ence. 1t is substituting in its place a new
government, either provisional OF other
wise, to be created under q new constitu-
ton, and to be elected by new and indie
pendent class of electors. What is the eff
| feet of this upon the State government and
upon the State now existing? The effect
is precisely the same, and in the case of a
private corporation, which could only keep
up it's existence by regular periodical cleo
| lions by its stockholders, the persons hay
| ing an interest in it, the owners of its fran
chise, and the right to perpetuate it, they
were forbidden to vote, deprived of the
right, or q large number of them were de-
prived of the right, and a mass of persons
having no right whatever were introduced
for instance the inhabitants of the vari-
GUS towns through which a company runs its
rilroad. This is direct attack upon the
constitution of the corporation in the
case supposed-a direct attack upon the
constitution and fundamental law of the
State in the case before your Honors.
| In the case before your Honors it may be
of Importance that it should be understood
| at the outset what we mean by State
We claim that State consists at all times
of the persons in whom reposes the ulti-
mate sovereignty or dominion, whichever