Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1868-02-07
From the Raleigh Sentinel.
THE QUESTION OF PER DIEM.
THE COMMUNICATIONS OF THE PUBLIC
TREASURER.


SIR have the honor to acknowledge
that have received and carefully consid-
cred the ordinance passed by your honora-
BILE body. viz;
''That the Treasurer of the State OF
North Carolina, upon the warrant of the
President of this Convention, is hereby au-
thorized and directed to pay the per- diem
and mileage of members and officers OF
this Convention"
With the greatest Difference for the opin
ion of the Convention, / much regret that
my views of the law render it impossible
for me to obey the mandate of this ordi-
nance.
On the 1st day of January, 1867, took
an oath of office, not directly or indirectly
to apply the public money to any other use
| than by law directed.
[ also entered into bond in the penal
sum of $3.50, 900, conditioned that would
faithfully account for all moneys and
other things which shall come into my
hands by virtue of my Office"
| If call is made on the Treasury, not
authorized by law, it is my duty to decline
cations of my oath as the pecuniary re
sponsibilities of my bond Under ordinary
circumstances it might be incumbent on
me to waive my individual opinion in de-
! ference to the superior wisdom of the Con
vention. But in this case the consequences
of unauthorized action are of such moment
to myself aud others, it would be madness
for me to disregard my clear conviction,
notwithstanding the dignity and weight OF
the body whose Judgment is variant from
my own.
In 1866 civil government was inaugu-
rated in this State, with power to raise
funds, by taxation, for carrying on It's ope-
rations. For this purpose funds have been
actually realized, and am, at present, the
agent charged with their custody and dis
bursement. It is true Congress has de-
clared this government illegal and void,
but, in the first place, as long as / consent
to be its servant, l cannot but acknowledge
its binding effect, subject to the Constitu-
ton and laws of the United States. And
secondly, Congress has expressly allowed
it to continue subordinated to its own
authority and that of the military officers
appointed for the purpose. So that even
under these laws this government is COM
plete In all its parts-with its own officers,
Executive, Legislative and Judicial-sup-
ported out of it's own Treasury.
The Convention, now in session, does
not derive its existence in any manner
from the present State government or under
it's Constitution. It has assembled under
other authority, and neither claims nor de-
slre5 to claim any connection with il. On
the contrary, the necessary effect Of the
inauguration of the government, contem-
plated by the Convention, is to supersede
and destroy the present. II there is any
obligation on the existing government to
proposed, this obligation must arise from
Of hn y1- 6
some authority superior to both.
1t is needless to say that the Legislature
Of this government has not authorized
such payment The authority must come
If at all, from the acts OF Congress, from
which this Convention derives its existence
These acts are
LIST. AN act to provide for the moro Of
hclent government OF the rebel States, y
passed March 2, 1867.
I'd. An act supplemental thereto, passed
March %, 1867.
3D.. An act supplemental to the aforesaid
acts, passed July, 1867.
Is there authority in these acts TO justify
the Convention in demanding funds of the
Public Treasury to pay its officers and mem
bers Ii seems to LIE the contrary is per-
fectly plain under the terms Of the acts
themselves.
ration that the existing State governments
are illegal and void, allowed their continu-
ance under certain conditions. By section
6, Of the Act of March 2, 1857, it is enacted
that until the people of said rebel States
shall be by law admitted to representation
III Congress, any civil governments which
may exist therein shall be deemed pro-
NlslOnal only, and in all respects subject to
tue paramount authority of the United
States, at any time to abolish, modify, con-
troll, Or supersede the same.''
1t thus appears that Congress reserves to
the United States the power over the civil
government in North Carolina, until the
people shall be by law admitted to repre-
sentation IN Congress. In other words, no
power but the United States can abolish,
modify, control or supersede this govern
ment until a Constitution shall be formed,
submitted to the people, adopted, and then
approved by Congress until General
Assembly shall be elected under that Con-
stitution until that Assembly shall adopt
the proposed amendment to the ConstiSu-
ton of the United States,' known as Arti-
Gle IA, and, in addition, said article shall
be adopted by three-fourths of the States.
Your honorable body has just entered on
the course OF duty prescribed. It has not
yet accomplished the first step, to wit the
formation of Constitution. It cannot, at
this time, abolish, modify, control, or su-
persede the present State government, be-
cause that would be interfering with the
prerogative of the United States
Now, Chief Justice Marshall lays it down
in McCulloch Is. the State of Maryland,
that the power to tax any subject involves
the power to destroy such subject by ex-
cessive taxation and so the power to ap-
rropriate a portion of the funds of the
State includes the power to appropriate
all, and hence to destroy or control the
State government by depriving it of the
means of continued existence. It thus ap-
pears that the ordinance of the Conven-
ton, directing me to disburse money from
the Treasury, infringes on power reserved
exclusively to the United States.
Again, by the LIST section of the Act Of
July, 1867, the continuance of the present
State government is allowed and the sane
is declared to be subject in all respects to
the Military Commander and authority of
Congress. How is this consistent with the
claim by the Convention of power over the
same government? The Treasury, of which
l am the guardian, is necessary to the life
of the very organization. without which it
cannot be continued in the manner allowed
by the Act.
It may be said that the funds in the