Saturday, December 30, 1826.

The House met pursuant to adjournment.

Mr. Perkins from the Committee on Propositions and Grievances to whom was referred a bill to be entitled an act, for the relief of Wm. B. Allen; reported the same without amendment, and recommend an approbation of its provisions; the bill was then read a second time, and Mr. McVay of Laud. moved that the bill lie on the table till the fist day of March next, which was carried- Yeas 30, Nays 29.

The yeas and nays being desired- those who voted in the affirmative are


177

 

Mr. Ambrister

Coopwood

Exum

McVay of Law

Roberts

Bailey

Coleman

Fluker

Mead

Smith of Lau.

Brown

Davis of Jack

Lewis

Massey

Smith of Mad.

Bell

Dupuy

McClung

Powell

Sims

Brasher

Duke

Moore of Mad.

Rhodes

Terry

Craig

Edmondson

McVay of Laud

Raney

Whitfield-30

Those who voted in the negative are

Mr. Speaker

Coe

Harris

Martin

Ross

Acklen

Davis of Fr.

Johnson

Neill

Smith of Hen.

Benson

Dennis

Jones

Perkins

Williams

Bridges

Dubose

Lawler

Pickens

Weissinger

Broadnax

Ellis

Montgomery

Parham

Walthall- 29

Barclay

Edwards

Moore of Jack

Perry

 

Mr. Moore of Jack. from the committee on enrolled bills; reported as correctly enrolled, an act which originated in the Senate entitled an act, authorized titles to the Lands and Town lots given to the State by the citizens of Tuscaloosa, to be made to the Governor for the use and benefit of this State.

Mr. Perkins from committee on Proposition and Grievances to whom was referred the memorial of T. B. Grantland and A. M. Robinson; reported a bill to be entitled an act, for the relief, for the relief of Grantland and Robinson, which was read a first time, and ordered to be read a second time on Monday.

Mr. Fluker, from the committee on inland navigation, to whom was referred so much of the Governor's message as relates to internal improvement, reported a bill to be entitled an act to provide for the improvement of the navigation of certain rivers therein named; which was read a first tie, an on the motion of Mr. Lewis was laid on the table.

Mr. Ross, from the committee on accounts, to whom was referred the accounts of sundry persons against the state, reported, a bill to be entitled an act making appropriations for certain claims against the state; which was read a first time, and, on motion of Mr. Ross, the rule requiring bills to be read on three several days being dispensed with, four-fifths of the members present voting in the affirmative, the said bill was read a second time forthwith, and on motion of Mr. Bridges was laid on the table.

Mr. Fluker presented the account of Thomas Jones, of Marengo county, for prosecuting two persons for horse stealing; which was read, and referred to the committee on accounts.  Mr. Williams presented the account of Overton Harris, for prosecuting a person for stealing a mule; which was referred to the committee on accounts.

Mr. Roberts being one of those who voted in the majority on the vote taken this morning on the indefinite postponement of the bill entitled an act for the relief of Wm. B. Allen, moved that the House do reconsider said voted, which was carried- Yeas 34, nays 27.

The yeas and nays being desired, those who voted in the affirmative are,

Mr. Speaker

Davis of Fr.

Heard

Martin

Roberts

Acklen

Dennis

Harris

Neill

Smith of Hen.

Benson

Dubose

Johnson

Pickens

Williams

Bridges

Ellis

Jones

Parham

Weissinger

Broadnax

Edwards

Lawler

Perry

Walthall

Barclay

Fluker

Montgomery

Ross

Whitfield- 34.

Coopwood

Greening

Moore of Jack

Raney

 

S


178

Those who voted in the negative are

Mr. Ambrister

Craig

Edmonson

McVay of Law.

Rhodes

Bailey

Coleman

Exum Lewis

Mead

Smith of Lau.

Brown Bell

Davis of Ja.

McClung

Massey

Smith of Mad.

Bradford

Dupuy

Moore of Mad.

Perkins

Sims

Brasher

Duke

McVay of Laud

Powell

Terry- 27

Mr. McVay of Laud, them moved that the further consideration of said bill be indefinitely postponed, which was carried- yeas 32, nays 30

The yeas and nays being desired, those who voted in the affirmative are

Mr. Armbrister

Coopwood

Exum

McVay of Law.

Raney

Bailey

Coleman

Fluker

Mead

Roberts

Brown Bell

Davis of Jack.

Lewis

Massey

Smith of La.

Bradford

Dupuy

McClung

Perkins

Smith of Mad.

Brasher

Duke

Moore of Mad.

Powell

Sims Terry

Craig

Edmondson

McVay of Laud

Rhodes

Whitfield-32

Those who voted in the negative are,

Mr. Speaker

Coe

Greening

Montgomery

Perry

Acklen

Davis of Fr.

Heard

Moore of Jac.

Ross

Benson

Dennis

Harris

Martin

Smith of Hen.

Bridges

Dubose

Johnson

Neill

Williams

Broadnax

Ellis

Jones

Pickens

Weissinger

Barclay

Edwards

Lawler

Parham

Walthall-30

Mr. Ross, from the committee on accounts, to whom was referred the petition of John Hayne, claiming compensation for provisions furnished the troops called into service in 1818, by order of Governor Bibb, reported, that they were of opinion that said accounts, if correct, are properly chargeable upon the government of the united States, and not upon the treasury of this state; and asked leave to be discharged from the further consideration thereof; which was granted.  Ordered, that said report be concurred in by the House.

Mr. Ross, from the committee on accounts, to whom was referred, the account of Wm. R. Martin, reported, that said account is not legally chargeable upon the state treasury; and asked leave to be discharged from the further consideration of said account; which was granted.  Ordered, that the House do concur in the said report.

Mr. Coopwood then asked leave to withdraw said account; which was granted.

Mr. Davis of Fr. from the military committee, asked leave to inform the House, that said committee have, jointly with the military committee of the Senate, examined the state arsenal, and the arms thereof, in conformity to a resolution of the General Assembly, and had directed him to report, that they opened several of the boxes containing muskets, pistols and sabres: the muskets are in bad order, injured already by rust, and likely to be much more so; the carton boxes are in very bad order, and without more attention in oiling of them, will in a short time be worth very little; the pistols and sabers are in tolerable good order.  And also the military committee are clearly of opinion, that the quarter master general has failed to discharge his duty in making an annual reported, as well as in his attention to the arms in the arsenal-therefore they would recommend to this


179

House a reduction of his salary.  Said report was then laid on the table.

Mr. Davis of Fr. obtained leave to introduce a bill to be entitled an act concerning the salary of the quarter master general for the year 1826; which bill was read a first time, and ordered to be read a second time on Monday next.

Mr. Lewis having voted in the majority on the voted given yesterday on indefinitely postponing a bill to be entitled an act for the relief of Daniel Coleman, moved to reconsider said voted; which was carried - Yeas 31, nays 29.

The yeas and nays being desired, those who voted in the affirmative, are, Mr. Speaker, Acklen, Benson, Bailey, Broadnax, Barclay, Craig, Coe, Coopwood, Dubose, Ellis, Edwards, Fluker, Heard, Harris, Lawler, Lewis, McClung, Moore of Mad. Moore of Jack. McVay of Law. Mead, Perkins, Perry, Ross, Raney, Roberts, Smith of La. Williams, Walthall, Whitfield- 31.

Those who voted in the negative are, Mr. Ambrister, Bridges, Brown, Bell, Bradford, Brasher, Coleman, Davis of Fr. Davis of jack. Dennis, Dupuy, Duke, Edmondson, Exum, Greening, Johnson, Jones, McVay of Laud. Martin, Massey, Pickens, Parham, Powell, Rhodes, Smith of Hen. Smith of Mad. Sims. Terry, and Weissinger- 29.

The bill was then read a second time, and on motion of Mr. Harris, was recommitted to the same select committee which has reported it, consisting of Messrs. Harris, Weissinger and Dubose, further to report thereon.

Mr. Lawler, from the select committee to whom was referred the bill to be entitled an act to reduce into one the several acts concerning roads, bridges, ferries and highways, reported the same with the following amendments: Strike out the word 'appointed' in the fifth line of the first section, and insert 'established;' after the word 'court' in the eighth line of the same section, insert 'except such as have been discontinued.'  In the proviso in the fourth section, strike ]out all the words after 'shall' to the word 'to,' and insert 'fail to apportion the hands.'  In the sixth section, after the word 'toll,' insert 'judges of the county courts and justices of the peace.' In the fifth line of the eighth section strike out the word 'of,' and insert 'not exceeding.'  In the tenth line of the tenth section, after the word 'aforesaid,' insert 'within sixty days after their appointment.'  At the end of the twelfth section insert, 'provided, that nothing herein contained shall subject the party removing said road to damages, where the same is done to straighten said road through enclosures, or when the removal shall not render the said road more inconvenient to the public;' which amendments were adopted.

Mr. Lawler then moved to strike out the first paragraph in the 5th section of the bill, and to insert in lieu thereof the following: 'that the county courts and commissioners of roads and revenue shall have full power, and they are hereby required, at the time they appoint overseers of roads, to nominate three freeholders or householders in each captain's beat, (a majority of whom may act,) within their respective counties, who shall apportion the hands liable by law to work on public roads.'  Mr. Davis of Fr. then moved to recommit the bill


180

to the committee on roads, bridges and ferries, which was lost.  The amendment offered by Mr. Lawler was then adopted.  The bill was then read a second time, and ordered to be engrossed and read a third time on Monday next.

Mr. Lewis offered the following resolution: Resolved, that the committee on ways and means be instructed to inquire, and report to this House, an estimate of the probable current expenses of the government of this state for the ensuing year, and how far, in their opinion, the taxes of the present year may be reduced so as fully to meet such current expenses, with the assistance of all the unappropriated funds in the treasury, and that the committee have full power to call for and receive al necessary information from the Comptroller and treasurer: which resolution was adopted.

A message from the Senate by Mr. Lyon their secretary.

Mr. Speaker- The Senate have passed bill which originated in your House entitled an act to regulate the fees of certain public officers in Baldwin county; and, an act supplementary to an act for the government of the port and harbor of Mobile.  They have also passed a bill which originated in their House, entitled an act to procure surveys, plans, and estimates in relation to certain subjects f internal improvement within this state; in which they desire your concurrence. And then he withdrew.

Mr. Mead, from the select committee to whom was referred a resolution instructing them to inquire into the expediency of revising and amending the laws of this state in relation to accounts and claims so as plainly to distinguish between accounts payable out of the county and state treasury, reported a bill to be entitled an act to pay officers for taking prisoners from one county to another in this state; which was read a first time, and ordered to be read a 2d time on Monday next.

A message from the Senate by Mr. Crabb, their assistant secretary.

Mr. Speaker- The Senate have read and passed a joint resolution explanatory of the 3d section of an act, entitled an act to fix the salary of the President of the Bank of the State of Alabama, and for other purposes; in which they desire the concurrence of your honorable body.  And then he withdrew.

The engrossed joint resolution from the Senate, explanatory of the 3d section of an act, entitled an act to fix the salary of the President of the Bank of the State of Alabama, and for other purposes, was read a first time, and, on motion of Mr. Perkins, the rule requiring bills and joint resolutions to be read on three several days being suspended, four-fifths of the members present voting in the affirmative, the resolution was read a second time forthwith.  Mr. Terry moved to amend the resolution by adding at the end thereof, 'and that this resolution be so taken and construed as a repeal of the third section of an act passed at the last session of the legislature, entitled 'an act to fix the salary of the President of the Bank of the State of Alabama, and for other purposes.  On motion of Mr. Moore of Mad. Said amendment was laid on the table.  Mr. Coopwood then moved that the further consideration of the resolution be indefinitely postponed,


181

which was lost.  Mr. Smith of Laud. then moved to amend the same by adding thereto the following words, 'and that all bills of exchange' drawn and payable either within or without the limits of this state, shall upon protest pay 10 per cent,' which was lost.  Mr. Harris then offered as an amendment thereto the following proviso: 'provided, that the provisions herein contained shall only extend to such members as are now indebted to the Bank, and to them only for such amount as there are at this time indebted, and in payment of the same,' which was not adopted.  Mr. Ross then obtained leave and withdrew the motion by him made to suspend the rule requiring bills to be read on three several days.

And the House adjourned till half past two o'clock.

Evening Session.

The House met at half past two o'clock pursuant to adjournment.

Mr. Coleman offered the following resolution and preamble;

Whereas considerable extortion and imposition have been exercised and imposed on the planters of South Alabama by the public weigher in the city of Mobile under the present law fixing the price per bale for weighing cotton, by evading the provision of the present law in making extra charges for hands and scales never intended by the existing law- Therefore,

Be it Resolved, that a select committee be appointed to provide an adequate remedy for the existing evil, with sufficient penalties, to prevent such impositions in future, with leave to report by bill or otherwise.  Ordered, that said resolution be referred to a select committee, to consist of Messrs. Coleman, Weissinger and Ross.

Mr. Powell offered the following resolution: Resolved, that the Bank committee inquire into the expediency of passing law appointing a board of inquiry in each county in this state to inquire into the solvency of all endorsers to notes offered to said Bank to be discounted; which was adopted.

Mr. Parham obtained leave to introduce a bill to be entitled an act to amend an act concerning the town of Tuscumbia; which was read a first time, and ordered to be read a second time on Monday next.

The joint resolution from the Senate, explanatory of the 3d section of an act to fix the salary of the President of the Bank of the state of Alabama, and for other purposes, having been read a second time, the question was put, shall this bill be read a third time on Monday next? and determined in the affirmative- Yeas 29, nays 25.

The yeas and nays being desired, those who voted in the affirmative are,

Mr. Speaker, Acklen, Benson, Bell, Bradford, Coe, Davis of Fr. Dennis, Edmondson, Edwards, Exum, Greening, Heard, Johnson, Lawler, McClung, Moore of Mad. Moore of Jack. McVay of Law. Martin, Perkins, Parham, Ross, Rhodes, Raney, Roberts, Smith of Mad. Williams, Whitfield-29

Those who voted in the negative, are, Mr. Ambrister, Bridges, Bailey, Brown, Broadnax, Barclay, Craig, Coopwood, Coleman, Davis of Jack. Dupuy, Dubose, Ellis, Harris, Jones, McVay of Laud. Massey, Neill, Pickens, Perry, Smith of Hen. Smith of Laud, Sims, Terry. Weissinger- 25.

Mr. Ross obtained leave to introduce a bill to be entitled an act to

S*


182

exempt the members of the hook and ladder company in the city of Mobile from military and patrol duty, and for other purposes; which was read a first time, and ordered to be read a second time on Monday next.

Mr. McClung obtained leave to introduce a bill to be entitled an act amendatory to the laws now in force relative to attachments, which was read a first time.  Mr. Coopwood moved that the further consideration of said bill be indefinitely postponed, which was lost.  The bill was then ordered to be read a second time on Monday next.

Mr. Powell obtained leave to introduce a bill to be entitled an act to change the mode of electing lieutenant colonels and majors in this state; which was read a first time. Mr. Johnson moved that the further consideration of said bill be indefinitely postponed which was carried.

On motion of Mr. Ellis, the engrossed bill to be entitled an at to divorce Mary Ducksworth from her husband George Ducksworth, was taken up from the table, was read a third time and passed, a constitutional majority having voted in the affirmative- yeas 45, nays 10.

Those who voted in the affirmative are,

Mr. Speaker

Bradford

Duke

Moore of Mad.

Rhodes

Acklen

Brasher

Edmondson

McVay of Law

Raney

Ambrister

Barclay

Ellis

Martin

Roberts

Benson

Craig

Exum

Massey

Smith of Hen.

Bridges

Coe

Greening

Neill

Sims

Bailey

Coopwood

Heard

Perkins

Terry

Brown

Davis of Fr.

Harris

Parham

Williams

Broadnax

Dupuy

Johnson

Powell

Walthall

Bell

Dubose

McClung

Ross

Whitfield-45

Those who voted in the negative are

Mr. Coleman

Dennis

Lawler

Pickens

Smith of Lau.

Davis of Ja.

Jones

McVay of Lau

Perry

Weissinger- 10

Ordered, that the title of said act be as aforesaid.  Ordered, that the same be sent to the Senate for their concurrence.

On motion of Mr. Jones, the engrossed bill to be entitled an act to divorce Coleman Allen from his wife Rebecca Allen, was taken up; was read a third time and passed, a constitutional majority having voted in the affirmative- Yeas 48, nays 6.

Those who voted in the affirmative are

Mr. Speaker

Brasher

Ellis

Moore of Mad.

Ross Rhodes

Acklen

Barclay

Edwards

McVay of Law.

Raney

Ambrister

Craig Coe

Exum

Mead

Roberts

Benson

Coopwood

Fluker

Martin

Smith of H.

Bailey

Davis of Fr.

Greening

Massey

Smith of mad.

Brown

Davis of Jack.

Heard

Harris Perkins

Terry

Broadnax

Dupuy

Johnson

Pickens

Williams

Bell

Dubose

Lewis

Parham

Walthall

Bradford

Edmondson

McClung

Powell

Whitfield- 48.

Those who voted in the negative are

Mr. Bridges

Dennis

Lawler

McVay of Lau

Perry Sims- 6

On motion of Mr. Lewis, it was ordered that Mr. Coe be added to the committee to draft a plan of the state capitol.


183

The bill to be entitled an act to locate the University of Alabama, was read a second time, and ordered to be engrossed for a third reading on Monday next.

The engrossed bill to be entitled an act to make compensation to the commissioners to close the unsettled accounts between this state and Mississippi, was read a third time.  Mr. Mead then offered the following amendment to the bill by way of an engrossed rider, to be added at the end of the bill: 'S.  And be it enacted, that Marmaduke Williams and John D. Terrel be hereby made agents for this state to sue the state of Mississippi for all such sum or sums of money due from the state of Mississippi to the state of Alabama, and that the said agents aforesaid be allowed the whole amount so sued for and recovered, as full and entire satisfaction; for their trouble as commissioners appointed to settle the unsettled claims between the states before mentioned; which was not adopted.

Mr. McClung, then moved to amend the bill by adding at the end thereof the following proviso, by way of engrossed rider.  "Provided that any amount which may have been received by said commissioners out of the contingent fund, shall be deducted from the sum allowed them by this act,” and also to add thereto the following section “Sec. 2 and be it further enacted that the law under which said commissioners were appointed be, and the same is hereby repealed;” which amendments were adopted.  Mr. Roberts, then moved to fill the blank in the bill with “four hundred dollars,” which was lost.  Mr. Ellis then moved to fill the bank with “three hundred dollars,” which was lost.  Mr. Ellis then moved to fill the blank with “two hundred dollars,” which was lost.  Mr. Roberts, then moved to fill the blank with one hundred and sixty four dollars, which as carried.  The bill was then passed. Ordered on motion of Mr. Coopwood, that the title be as aforesaid with the addition of the words “and for other purposes,” ordered that the same be sent to the Senate for their concurrence.

Mr. Craig offered the following resolution: “Resolved, that the Judiciary committee be instructed to inquire into the expediency of making some provision for furnishing each Justice of the Peace in this state with all the forms which may be necessary for correctly discharging their duties of Justices of the Peace,” which was lost.

The engrossed bill to be entitled an act to extend the jurisdiction of this state over so much of the Creek Nation as was ceded under the treaty of the Indian Springs of 1825, within the chartered limits of this state, was read a third time and passed.  Ordered that the title be as aforesaid.  Ordered that the same be sent to the Senate for their concurrence.

Mr. Broadnax then moved tat the report made by the select committee who reported the last mentioned bill, be spread at length upon the journals of this House, which was carried.  Ordered that said report be spread accordingly, which report is in the following words.

“The select committee, to whom was referred so much of his Excellency the Governor's message as relates to the Creek treaty, respectfully submit the following Report.  They have diligently examined the treaty of the Indian Springs, concluded on the twelfth day of February 1825, by commissioners on the part of the United States, and the chiefs and head men of the Creek nation.  On the face of this treaty they see nothing to impeach its validity, but on the contrary, they have found those marks of authenticity which usually attend all the treaties between the Government of the United States and the


184

several Indian tribes.  It was signed by fifty one chiefs and by that tribe and portion of the Creek nation who have always exercised the power to making and signing treaties for and in behalf of the rest of the nation, and attested by John Crowell in his official character as agent of Indian affairs.  This treaty thus concluded on the part of the United States and the Creek nation, was formally ratified by the President by and with the advice and consent of the Senate of the United States. Under its provisions the state of Alabama acquired a right which became absolutely vested by the ratification of the treaty to a considerable portion of the Indian lands within its chartered limits, and as such it has become to all intents and purposes a party in interest to said treaty.  By the constitution of the United States, all treaties when ratified by the competent authorities are declared to be the Supreme law of the land.  How far it is competent for the treaty making power by an ordinary act to annual a law of such permanent authority your committee think it is unnecessary at present to enquire, but the question assumes a still more portentous aspect when it is considered that an annulment conflicting with the vested rights of Alabama as a sovereign state, was affected not only without the consent of said state, but in opposition to its expressed and known will on the subject.  If the General Government has the power to supercede the rights of a sovereign state, vested under the solemn stipulations of a treaty which in the language of the constitution” is the Supreme law of the land.” than it has the same power to annual any provision of the constitution itself being a law of only equal authority and by that means to deprive any state of any right secured under its provisions.  In the present instance it appears to your committee from the journals of the Senate of the United States, that the treaty of 1825, was set aside in the entire absence of all evidence calculated to impeach its validity.  During the pendency of the question, a resolution was introduced by Mr. King, a senator from this state, calling on the President of the United States to lay before the Senate such information as might be in his possession calculated to invalidate the treaty of the Indian Springs. a resolution so reasonable so necessary to the correct adjustment of a difficult question was negative by a decided majority.  Thus under the express declarations of the President of the United States, as appears by his message at the commencement of the session, that the first treaty with all the facts and circumstances in relation to it would be submitted to Congress, were the rights of Alabama passed upon without a knowledge of those facts, which would appear necessary to the Senate in forming any opinion in relation to the matter. Your committee believe that where a state is in possession of a vested right under any compact or treaty with the General Government, that such right appertains to the state in its sovereign individual character and not inlits federative character as constituent part of the Union, hence they believe that these rights when vested are not subject to revision or alteration by the Congress of the United States, but are under the entire control of the legislature of the state to which they appertain as the proper organ of the sovereign power of such state.  Under this view of the subject your committee feel bound to say that in no way could the state of Alabama have been constitutionally dispossessed by Congress of any right she may have acquired under the treaty of the Indian Springs: that these rights were enacted by the General Government in the very act of ratifying the treaty and promulgating the same as the law of the land, and that no power known to the constitution could divest the state of the  use and enjoyment of them without the consent of its state Legislature, the proper organ of its State Sovereignty.  To present the question in a tangible form, they recommend to your honorable body the passage of a bill to extend the civil and criminal jurisdiction of the state over the


185

country acquired within its chartered limits by the treaty of the Indian Springs. They believe that the practical result of the measure will be to cause the validity of the two treaties to be investigated before a competent judicial tribunal and a decision to be had thereon by which the question as regards the rights of Alabama will be forever put to rest.  In doing this they believe that no particular hardship or oppression will be practiced upon the Indians, living within the limits of the territory over which jurisdiction is proposed to be extended. And then the House adjourned till Monday morning at 9 o'clock.