JOURNAL OF THE SENATE.

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AT a called session of the General Assembly of the State of Alabama, begun and held at the town of Cahawba on the fourth day of June in the year of our Lord one thousand eight hundred and twenty one, in pursuance of the proclamation of his excellency the acting Governor Thomas Bibb, it being the third session of the General Assembly of said state; the following members of the Senate appeared and took their seats, to wit: Gabriel Moore, President, Thomas Casey, David Conner, Joseph B. Chambers, Nicholas Davis, J. W. Garth, John Gause, William D. Gaines, Gabriel Hanby, Thomas Hogg, Thomas Ringgold, Howel Rose, John D. Terrell, William Trotter and Bennet Ware, Senators.

Monday June 4, 1821.

On motion of Messrs. Casey and Rose the Senate received the certificates of election of William Lucas from Franklin county, and Charles A. Dennis from Bibb county, Senators in room of William Metcalf and Littlepage Sims, resigned: and the oath prescribed by law being administered to them, respectively, by the President, they accordingly took their seats in the Senate.

On motion of Mr. Garth the following resolution was adopted: Resolved, that a message be sent to the House of Representatives, informing them that the senate have convened agreeably to the acting Governor's proclamation, and are ready to proceed to business. Ordered that the secretary inform the House of Representatives thereof accordingly.

A message from the House of Representatives by Messers. Chambers and Chapman: Mr. President we are instructed to inform the senate, that the house of representatives have convened and are now ready to proceed to business.

On motion of Mr. Terrell the following joint resolution was adopted: Resolved, that a committee of three members be appointed on the part of the senate, to associate with such committee as may be appointed by the representative house, whose duty it shall be to wait on his excellency the acting Governor, and inform him, that the General Assembly is now organized and ready to receive his communications: whereupon, Messrs. Terrell, Gaines and Garth were appointed on the part of the senate. Ordered that the secretary acquaint the house of representatives thereof.

A message from the house of representatives by Mr. Chapman: Mr. President, I have to inform the senate that the house of representatives concur to the resolution for appointing three members of each branch a joint committee, to wait upon his excellency the act-


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ing Governor and inform him, that the General Assembly is now organized and ready to receive his communications: and that they have nominated on their part Messers. Chapman, Cook, and Sargent.

Mr. Terrell from the same committee, thereafter reported, that the joint committee had waited on his excellency the acting Governor, and received for answer, that he would at the hour of three send his communication to the General Assembly.

Whereupon, on motion, the senate adjourned until that time.

Three o'clock P.M.

The Senate met pursuant to adjournment,

On motion of Mr. Garth the senate received the certificate of election of John Elliot from Mobile county, elected in room of James L. Seabury, residing and the oath prescribed by law being administered to him by the President, he accordingly took his seat in the senate.

A message from the Governor, by Thomas A. Rogers, Esqr. secretary of state, to wit:

Gentlemen of the Senate and of the House of Representatives,

The unhappy difference of opinion which existed between your bodies at your last session, in relation to the apportionment of repretation for the next General Assembly, and which resulted in your adjournment without passing any law on that subject, involves in its consequences, which in my estimation threaten the very existence of the legislative branch of the government; under the influence of this belief, in addition to other weighty considerations, I have felt myself under the necessity of calling you together at this period: and in avowing this as the principal object of your being assembled, I trust you will not deem it improper, that I should offer for your consideration some of the reasons which have induced this belief.

The security of the rights, interest and liberties of the people, under the administration of the government, is the highest and indeed the sole object for which our constitution exists: and for that purpose in the organization of the legislative department, which comes more immediately from the people, and which should be, emphatically, the representative of their will. Certain principles are laid down, by which those rights, interests and liberties are to be secured, and through which the people are at all times to enjoy an equality in representation.

To carry these principles into effect the ninth and tenth sections of the third article of the Constitution have amply provided. The ninth section declares among other things, "that the General Assembly shall at their first meeting and in the years one thousand eight hundred and twenty, one thousand eight hundred and twenty-three, one thousand eight hundred and twenty-six, and every six years thereafter, cause an enumeration to be made of all the inhabitants of the state, and the whole number of the representatives shall at the first session held after making every such enumeration, be fixed by the


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General Assembly, and apportioned among the several counties, cities or towns, entitled to separate representation according to their respective numbers of white inhabitants; and the said apportionment when made shall not be subject to alteration until after the next census shall be taken." The duty of causing these periodical enumerations to be made is as imperative as the object for which they are to be taken is plain and important: both the letter and spirit of the Constitution point to this conclusion, that the duty is obligatory and not to be dispensed with. No discretion is left to the legislature, except as to the detail, and on the regular and faithful discharge of this duty depends the constitutional existence of the legislative department.

The enumeration "shall be taken" at certain periods, and the apportionment "shall be made" upon the return of the enumeration, when made "shall not be subject to alteration until after the next census shall be taken."

The apportionment follows as a necessary consequence of the taking of the enumeration, and therefore continues only until a new one is taken. No express provision can be found in the Constitution, for continuing one apportionment, until another one shall be made, and to imply a provision of that kind would in effect destroy the very existence of the whole section, and would, if carried to its full extent have the effect of perpetuating the present apportionment; a construction which it is believed cannot for a moment be tolerated consistent with any sound principle of reasoning.

If either of these duties can be dispensed with by any one legislature whose duty it is to perform them, they can be dispensed with altogether, and when once the principle is admitted that the last apportionment remains operative and in force until superceded by another; it admits the existence of a principle in the Constitution inconsistent with itself, and which in fact gives to it a construction by which it is made to sanction its own violation. And could we suppose the freemen of this state would so long permit it to operate, we may ten years hence have the novel spectacle of beholding a legislature purporting to be assembled in conformity with the Constitution and exercise the powers delegated by it, when not a feature in the organization of the body will be in conformity with that Constitution.

This may be supposing an extreme case and one which may never happen, it is nevertheless supposing nothing more than is contained in the principle; the Constitution is violated when the duty is not performed by the legislature whose duty it is to perform it, and the case supposed differs not in the principle but only in the degree. So extremely cautious and explicit is this section, that not only must the enumeration and apportionment be made at certain fixed periods, but it also provides that the apportionment when made "shall not be subject to alteration until after the next census shall be taken."

It will be unnecessary for me to offer you many reasons to show the peculiar propriety and necessity there is for thus circumscribing and


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limiting the legislature in the exercise of the particular duty of providing for the constitutional existence of its own body. The many inducements to evade the spirit of the provision arising from sectional feelings, which it is to be regretted exists in a greater or less degree in all legislative bodies; the great and important powers necessarily delegated to that body, the exemption from control or responsibility except to the people, and more than all the fact that in these sections are contained the principles to which the freemen of this state look for the perfect exercise of the dearest of their rights, the right of suffrage, shew the importance of the provisions, and induce of themselves the conclusion that the only mode by which the legislative department can be constitutionally perpetuated, is in adhering strictly to the injunctions contained in those sections, and that consequently, should there be a failure at any of the appointed times to comply with the provisions, the failure will be fatal to the existence of the legislative department, and that all acts done by any body constituted or continued in any other manner than in conformity with those provisions will be unconstitutional and void.

That the principles growing out of the ninth section of the third article if correct as understood by me are applicable to the tenth section of the same article and render it equally necessary to apportion the senatorial branch whenever the other branch is apportioned, will not be denied, unless an exception is to be found at this particular period of our government, arising from a provision at the conclusion of the eight article of the schedule to the Constitution; in the construction of which has arisen the unhappy difference of opinion which occasioned your separation at the last session without acting finally on this subject.

I am peculiarly sensible of the delicacy of, at this time offering you my sentiments on this point; conscious as I am, that it has been once before you in your legislative capacity, but the necessity which I have felt myself under of again calling your attention to it, together with that degree of respect and candour which should always be observed between the co-ordinate branches of the government, induces me now to lay my views before you, which I should not have done at an ordinary session unless compelled by the provisions of a law which would render it indispensable.

The eighth section of the schedule to the Constitution, provides "that until the first enumeration shall be made as directed by this Constitution" the several counties shall be entitled to a particular representation therein mentioned, and that "each county shall be entitled to one Senator who shall serve for one term." By the twelfth section of the third article it is declared that "Senators shall be chosen for the term of three years," and to ascertain the period of time which the Senators chosen under the provisions of this section of the schedule is the object of the present enquiry.

That there is much ambiguity arising from, if not direct contradiction between the ninth and tenth sections of the third article, and the


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eighth section of the schedule, none will deny. But in the construction of the Instrument, we are to take into view all the provisions which relate to the same subject, and whenever ambiguity or contradiction manifests itself, we should give it that construction which shall least conflict with the spirit of the instrument, and which shall tend least to limit, control, or destroy, its most important provisions, with this, as the basis, on which our examination is founded, let us inquire what will be the result.

The object and design of the eighth section of the schedule was to provide for the immediate organization of the Legislative department, it was an act necessary to be done by the convention to give effect to the constitution they were framing; and that necessity existed no longer than was required to enable the Legislature organized by the section to carry the main provisions of the constitution, in relation to that department, into effect. By keeping in view the object and design of the section, together with the necessity which enacted it, we may derive some assistance in giving construction to that part of it which indictates the time which the senators shall serve. It will not, I presume, be denied, but that when an enumeration should be taken, the necessity, of continuing the provision would cease, and that independent of the provision of the twelfth section of the third article, the time mentioned would not be construed to mean a longer period than the time which would elapse between the election of the Senators and the return of the first census; and that this must be the construction which it bears, I am induced to believe, from the most deliberate examination which I have been able to give the subject.

By defining the term for which a Senator shall serve, as provided in the schedule, to be three years, we necessarily defer for one year; carrying the main principle of the constitution in relation to the organization of the Senate, as provided by the tenth section of the third article, into effect, thereby continuing for one year longer than was necessary, the arbitrary provision of the schedule in relation to the Senate. We are also compelled to defer apportioning the House of Representatives for the same period; or if we do it, we are compelled to violate the rule laid down for the relative proportions of the different branches; or, to avoid that difficulty, we must give to the House of Representatives a greater number than is permitted by the constitution for that body to consist of, when the whole number of white inhabitants is taken into view. The ninth section of the third article, declares, that "the whole number of Representatives shall not exceed sixty, until the number of white inhabitants shall exceed one hundred thousand. And the tenth section of the same article declares that the whole number of Senators shall never be less than one fourth, nor more than one third, of the whole number of Representatives." Our white population it is known does not exceed 100,000, and the present Senate it is known exceeds one third the number of which the Repretatives shall be, so that it follows as an inevitable consequence of this construction, that we must abandon the objects contemplated in taking the first enumeration, or violate some important and positive provision in relation to the organization of the two branches.


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If we enter into the main provisions of the constitution, it is believed we must do so by virtue of the first enumeration, and in conformity with the principles of the ninth and tenth sections of the third article, and if we do not do so by virtue of that enumeration, and in conformity with those principles, I cannot conceive how a constitutional Legislature can be perpetuated.

By defining the time mentioned in the eighth section of the schedule to be that period of time which shall elapse between their election, and the return of the first enumeration we can avoid all the difficulties which it has been shewn are consequent upon a different construction. We are enabled at once to carry into effect the ninth and tenth sections of the third article without delay, according to their letter and spirit, and we only place a limit upon the length of time which a particular number of individuals shall hold their seats, which is I am induced to believe, a matter of far less importance than to defer entering upon the main provisions of the ninth and tenth sections of the third article, or the consequences which will follow upon only complying partially with those provisions.

But it is believed that further arguments are to be found in aid of this construction from the instrument itself. The first clause of the eighth section of the schedule seems to limit the duration of the time to the period of the first enumeration; and it is thought operates to control the whole of the section. The 13th section of the third article is still more in point. That section provides for dividing the senators chosen in 1826, into three classes, and limits the term of the first and second classes, to one and two years. Yet all the Senators chosen in that year, are chosen for the term of three years. Indeed I can give no other construction to the time for which senators are elected than that in no instance can it exceed three years; but that the time may be limited to a shorter period either by express provision or by such provisions as in their effect require a limit in order to carry more important provisions of the constitution into effect.

It may be proper for me here to advert to those provisions of the ninth and tenth sections of the third article which requires the apportionment to be made at the first session held after making every enumeration. In the construction of these provisions, I am governed by the same principles of construction which have governed me in the construction of the other to look at the spirit of the instrument, and with this view I can see no difficulty in your acting at this time, although the time when the act is to be done is directory, yet the power being vested in the body is not divested during the legal existence of the body, and may be exercised at any time previously to its dissolution.

I feel every confidence that you will again enter upon this subject with a view alone to give to the constitution a correct construction, and I confidently trust that with that as your object, together with the advantage of the time and reflection you have had, you will not fail to arrive at a conclusion which will leave nothing for doubt, or dissatisfaction.


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I cannot close this communication without calling your attention to the manifest imperfections in the existing laws for the collection of the Revenue, which would have been alone sufficient to have induced a called session. That a public credit should at all times be sustained, is of the highest importance to the faithful administration of the Government; but such are the imperfections of the present system, that although the taxes are nominally high, yet the amount of the actual receipts into the Treasury will fall far short of the charges upon it. The defect proceeds principally from the mode of assessment, and I would recommend a total change of the system, and would suggest the propriety of so framing the laws as to require the property of each individual to be given into one assessor only, to require the lands to be designated by townships, ranges, quarter sections, &c. and to reinstate the old mode of classification.

THOMAS BIBB.

Cahawba, June 4th, 1821.

Which message was read, and

On motion of Mr. Garth ordered to lie on the table.

On motion of Mr. Casey, ordered that fifty copies of the Governor's message be printed.

On motion of Mr. Rose the following resolution was adopted: Resolved, that so much of the acting Governor's message as relates to the apportionment of the members of the House of Representatives and laying the state off into senatorial districts, be referred to a select committee:

Whereupon, Messrs. Rose, Gause and Elliott were appointed.

On motion the Senate adjourned until ten o'clock to morrow morning.